THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A   HISTORY 

OF 

THE    AMERICAN    BAR 


A  HISTORY 


OF 


THE  AMERICAN   BAR 


BY 

CHARLES    WARREN 

OF   THE   BOSTON   BAR 


"  All  men  at  all  times  and  in  all  places  do  stand  in 
need  of  Justice,  and  of  Law,  which  is  the  rule  of 
Justice,  and  of  the  interpreters  and  Ministers  of  the 
Law,  which  give  life  and  motion  unto  Justice." 

Prtfact  Dedicatory  to  Sir  John  Davies'  Reportt  (1615). 


BOSTON 
LITTLE,  BROWN,  AND   COMPANY 

1911 


m 


Copyright,  igii, 
By  Little,  Brown,  and  Company. 


All  rights  reserved 
Published,  October,  191 1 


THE  UNIVERSITY   PRESS,  CAMBRIDGE,   U.S.A. 


PREFACE 

This  book  is  not  a  law  book  for  those  who  wish  to  study 
law.  It  is  an  historical  sketch  for  those  who  wish  to  know 
something  about  the  men  who  have  composed  the  American 
Bar  of  the  past,  and  about  the  influences  which  produced 
the  great  American  lawyers. 

Part  of  the  material  in  this  book  has  been  previously  pub- 
lished in  a  work  which  had  a  limited  circulation  among  sub- 
scribers interested  in  the  history  of  a  particular  law  school. 
I  have  now  revised,  corrected  and  amplified  this  material, 
in  order  to  present  it  in  such  form  as  may  be  of  interest  and 
of  value  to  American  lawyers  in  general. 

So  far  as  I  know,  no  effort  has  ever  hitherto  been  made  to 
bring  together  from  the  innumerable  scattered  sources  the 
scanty  information  existing  in  relation  to  the  early  Colonial 
Bars  in  this  country.  Part  One  of  this  book,  therefore,  is  an 
attempt  to  show  the  legal  conditions  in  each  of  the  various 
American  Colonies  during  the  Seventeenth  and  Eighteenth 
Centuries  and  prior  to  the  Revolutionary  War.  In  each, 
the  status  of  the  Common  Law  as  apphed  by  the  courts  is 
described;  the  methods  of  appointment  and  composition  of 
the  courts  are  set  forth ;  and  an  account  of  the  leading  law- 
yers, together  with  brief  biographical  data,  is  given.  The 
legislation  regarding  the  legal  profession  in  each  Colony  is 
stated  in  some  detaU.  A  chapter  is  devoted  to  a  thorough 
description  of  the  materials  for,  and  methods  of,  a  lawyer's 
education  in  those  early  days;  and  another  chapter  gives 
an  account  of  the  Colonial  Bar  Associations  and  of  the 


700402 

LAW 


vi  PREFACE 

Colonial  law^'ers  who  received  their  education  or  who 
became  barristers  in  the  Inns  of  Court  in  London. 

In  order  to  correlate  the  progress  of  the  legal  profession 
in  England  and  America,  two  chapters  are  concerned  with 
a  description  of  the  state  of  the  law,  the  law  books  and 
reports,  the  lawyers  and  the  courts  of  England  in  the 
Seventeenth  and  Eighteenth  Centuries,  —  thus  bringing 
into  view  contemporaneous  legal  conditions  in  the  two 
countries. 

Part  Two  of  this  book  portrays  the  growth  of  the  Ameri- 
can Bar  from  the  foundation  of  the  United  States  Supreme 
Court  to  the  opening  of  the  Civil  War.  One  chapter  de- 
scribes the  curious  and  interesting  widespread  prejudice 
against  lawyers  as  a  class  and  against  the  Common  Law* 
as  a  relic  of  English  dominion,  which  existed  from  1786 
until  after  1800.  Three  chapters  are  devoted  to  the  com- 
position of  the  Bar  of  the  United  States  Supreme  Court 
during  the  three  eras  between  1789  and  i860,  —  the  first 
era  ending  with  the  close  of  the  War  of  1812  in  1815;  the 
second  ending  with  the  zenith  year  of  the  reign  of  Chief 
Justice  Marshall  in  1830;  and  the  third  covering  Chief 
Justice  Taney's  career  and  ending  with  the  year  i860.  In 
these  chapters,  the  leading  cases  argued  before  the  Court 
from  year  to  year  are  taken  up  and  described,  not  as  mere 
cases  deciding  points  of  law,  but  as  striking  events  in  legal 
history.  Particular  attention  is  given  to  the  great  lawyers 
who  acted  as  counsel  in  the  various  cases,  to  the  manner  of 
the  argument,  and  to  the  effect  produced  by  the  decisions 
upon  the  surrounding  conditions  of  the  times,  economic, 
social  and  legal. 

Much  resort  has  been  had  to  contemporary  letters  and 
newspapers  in  depicting  the  actual  part  that  each  case 
played  in  its  own  time,  and  the  actual  weight  which  the 
eminent  counsel  had  upon  the  decisions  of  the  Court. 


PREFACE  vii 

Care  has  been  taken  to  give  in  foot-notes  the  date  of  birth 
of  all  the  lawyers  of  distinction,  together  with  a  few  other 
data,  such  as  their  college  graduation,  admittance  to  prac- 
tise and  appointment  to  legal  ofi&cial  positions,  so  that  the 
book  in  this  way  may  serve  as  a  handy  reference  for  short 
legal  biography.^ 

A  chapter  is  devoted  to  the  history  of  all  the  early  law 
professorships  and  law  schools  from  1784  to  1830. 

The  rise  and  development  of  American  law  books  is  shown 
in  two  chapters  giving  practically  complete  Hsts  of  all  the 
most  important  legal  works  of  this  country  between  1785 
and  i860,  with  the  date  of  their  appearance. 

And  in  order  to  make  plain  the  influences  which  developed 
the  American  Bar  from  the  small  group  of  men  of  which  it 
consisted  at  the  beginning  of  the  Nineteenth  Century,  to 
the  vast  and  influential  body  which  composed  it  at  the  end 
of  the  succeeding  half  century,  three  chapters  have  been 
devoted  to  the  four  great  factors  in  the  development  of  the 
gar,  —  the  rise  and  growth  of  corporation  and  of  railroad 
law  between  1830  and  i860,  the  expansion  of  the  Com- 
mon Law  to  meet  the  new  economic  and  social  conditions 
arising  between  181 5  and  i860,  and  the  weighty  movement 
for  codification  between  1820  and  i860.  These  three 
chapters  are  written  from  a  purely  historical  point  of  view, 
and  do  not  attempt  to  state  legal  doctrines  as  they  may  be 
found  in  law  books,  but  to  describe  rapidly  and  graphically 
the  progress  of  American  law  as  a  highly  important  factor 

in  American  history. 

Charles  Warren. 


1  My  authorities  for  dates  are  chiefly  Appleton's  Cydopedin  of  American 
Biography  (1898);  Biographical  Annals  of  iJie  Civil  Government  of  the  United 
States,  by  Charles  Lanman  (1S76);  and  the  various  biographies  cited  in 
the  notes  infra. 


THE  FIRST   AMERICAN  ADDRESS   TO 

LAWYERS 

By  cotton   MATHER,   1710 

"It  was  a  Passage  in  a  Speech  of  an  Envoy  from  His  Brit- 
tanick  Majesty  to  the  Duke  of  Brandenburgh,  twenty  years  ago: 
*A  Capacity  to  Do  Good  not  only  gives  a  Title  to  it,  but  also 
makes  the  doing  of  it  a  Duty.'  Ink  was  too  vile  a  Liquor  to 
Write  that  Passage;  Letters  of  Gold  were  too  Mean  to  be  the 
Preservers  of  it.  .    .    . 

"Gentlemen:  Your  Opportunities  to  Do  Good  are  such,  and 
so  Liberal  and  Gentlemanly  is  your  Education  .  .  .  that  Pro- 
posals of  what  you  may  do  cannot  but  promise  themselves  an 
Obliging  Reception  with  you.  'Tis  not  come  to  so  sad  a  pass 
that  an  Honest  Lawyer  may,  as  of  old  the  Honest  Publican, 
require  a  Statue  merely  on  the  Score  of  Rarity.  .  .  . 

"A  Lawyer  should  be  a  Scholar,  but.  Sirs,  when  you  are 
called  upon  to  be  wise,  the  main  Intention  is  that  you  may  be 
wise  to  do  Good.  ...  A  Lawyer  that  is  a  Knave  deserves 
Death,  more  than  a  Band  of  Robbers;  for  he  profanes  the  Sanc- 
tuary of  the  Distressed  and  Betrayes  the  Liberties  of  the  People. 
To  ward  off  such  a  Censure,  a  Lawyer  must  shun  all  those 
Indirect  Ways  of  making  Hast  to  be  Rich,  in  which  a  man 
cannot  be  Innocent;  such  ways  as  provoked  the  Father  of  Sir 
IMatthew  Hale  to  give  over  the  Practice  of  the  Law,  because  of 
the  Extreme  Difficulty  to  preserve  a  Good  Conscience  in  it. 

"Sirs,  be  prevailed  withal  to  keep  constantly  a  Court  of 
Chancery  in  your  own  Breast.  .  .  .  This  Piety  must  Operate 
very  particularly  in  the  Pleading  of  Causes.  You  will  abhor, 
Sir,  to  appear  in  a  Dirty  Cause.  If  you  discern  that  your  Client 
has  an  Unjust  Cause,  you  will  faithfully  ad\ise  him  of  it.    You 


X       THE   FIRST  AMERICAN  ADDRESS  TO  LAWTERS 

will  be  Sincerely  desirous  that  Truth  and  Justice  may  take 
place.  You  will  speak  nothing  which  shall  be  to  the  Prejudice 
of  Either.  You  ■^ill  abominate  the  use  of  all  unfair  Arts  to 
Confound  Evidence,  to  Browbeat  Testimonies,  to  Suppress 
what  may  give  Light  in  the  Case.  .  .  . 

"There  has  been  an  old  Complaint,  That  a  Good  Lawyer 
seldom  is  a  Good  Neighbor,  You  know  how  to  Confute  it, 
Gentlemen,  by  making  your  Skill  in  the  Law,  a  Blessing  to  your 
Neighborhood.  You  may,  Gentlemen,  if  you  please,  be  a  vast 
Accession  to  the  Felicity  of  your  Countreys.  .  .  .  Perhaps  you 
may  discover  many  things  yet  wanting  in  the  Law;  Mischiefs 
in  the  Execution  and  Application  of  the  Laws,  which  ought  to 
be  better  provided  against;  Mischiefs  annoying  of  Mankind, 
against  which  no  Laws  are  yet  provided.  The  Reformation  of 
the  Law,  and  more  Law  for  the  Reformation  of  the  World  is 
what  is  mightily  called  for." 

[Bonif actus  —  An  Essay  upon  the  Good  that  is  to  be  Dmsed  and  Designed 
by  those  who  Desire  to  Answer  the  Great  End  of  Life  and  to  Do  Good  while  they 
Live.  A  Book  of  ered  first  in  General  unto  all  Christians  in  a  Personal  Capacity, 
or  in  a  Relative ;  then  more  particularly  unto  Magistrates,  unto  Ministers, 
unto  Physicians,  unto  Lawyers,  unto  Scholemasters,  unto  Wealthy  Gentlemen, 
unto  several  Sorts  of  Officers,  unto  Churches,  and  unto  all  Societies  of  a  Religious 
Character  and  Intention,  with  Humble  Proposals,  of  Unexceptionable  Methods 
to  Do  Good  in  the  World.  —  By  Cotton  Mather  {Boston,  1710).] 


CONTENTS 

PART    I 

COLONIAL  BAR 

Page 

Preface       v 

The  First  American  Address  to  Lawyers ix 

iNTRODUCrORY 

Law  Without  Lawyers 3 

Chapter 

I    Engush   Law,   Law   Books  and   Lawyers  in  the 

Seventeenth  Century 19 

11    The  Colonial  Bar  of  Virginia  and  Maryland    .     .  39 

Virginia 39 

Maryland 49 

III  CoLONLVL  Massachusetts  Bar 59 

IV  Colonial  New  York,  Pennsylvanu  and  New  Jersey 

Bar 90 

New  York 90 

Pennsylvania loi 

New  Jersey m 

V    The  Colonl^l  Southern  Bar 118 

South  Carolina 118 

North  Carolina 122 

Georgia 125 

VI    New  England  Colonlu.  Bar 128 

Connecticut 128 

New  Hampshire i34 

Maine i39 

Rhode  Island 140 


xii  CONTENTS 

Chapter  Pagb 

VII    The   Law  and  Lawyers    in    England   in   the 

ElGHlEENTH    CeNTURY 1 46 

VIII    A  Colonial  Lawyer's  Education 157 

IX    Early  American  Barristers,  and  Bar  Associations  188 

PART    II 
FEDERAL  BAR 

X    Prejudices  Against  Law  and  Lawyers    .     .    .     .  211 

XI    The  Federal  Bar  AND  Law,  1 789-1815  .     .     .     .  240 

XII    Early  State  Bars  of  New  York  and  New  England  292 

New  York 292 

Massachusetts 304 

New  Hampshire 319 

Vermont 321 

Connecticut 322 

XIII  Early  American  Law  Books 325 

XIV  Early  Law  Professorships  and  Schools      .     .     .  341 
XV    The  Federal  Bar  and  the  Law,  18 15-1830    .     .  366 

XVI    The  Federal  Bar  and  Law,  i  830-1 860  ....  408 

XVII    The  Progress  of  the  Law,  i  830-1 860  ....  446 

XVIII    The  Rise  of  Railroad  and  Corporation  Law  .    .  475 

XIX    The  Era  of  Codes,  i 820-1 860 508 

XX    American  Law  Books,  1 815-1910 540 

Appendix 5^3 

Index 5^7 


PART   ONE 
COLONIAL    BAR 


A  HISTORY 
OF  THE  AMERICAN  BAR 


INTRODUCTORY 


LAW    WITHOUT    LAWYERS 


Notwithstanding  the  various  American  Colonies  were 
founded  separately,  each  in  its  own  peculiar  mode,  and  were 
maintained  as  separate  goverrmients,  having  slight  con- 
nection with  each  other  in  administration  and  little  inter- 
communication in  trade  or  otherwise  until  the  early  years  of 
the  Eighteenth  Century,  their  usages  and  their  institutions 
developed  on  closely  parallel  hues.  In  nothing  is  this  more 
marked  than  in  the  history  of  their  judicial  organizations 
aii3~or  the  constitution  of  their  legal  Bars. 

In  all  the  Colonies,  the  General  Assembly  or  Legislature 
at  first  constituted  the  sole  court  of  law;  later,  the  Governor 
and  his  Deputies  or  Assistants;  and  in  many  Colonies  it 
was  not  until  half  a  century  after  settlement  that  separate 
and  independent  courts  were  instituted.  In  all  the  Colo- 
nies, the  courts  were  composed  of  la>'men,  with  the  possible 
exception  of  the  Chief  Justice.  It  was  not  until  the  era  of 
the  War  of  the  Revolution  that  it  was  deemed  necessary  or 
even  advisable  to  have  judges  learned  in  the  law.  In  most 
of  the  Colonies,  the  Chief  Justice,  and  through  him  the 
courts,  were  subject  in  a  great  degree  to  the  control  of  the 


4  A  HISTORY  OF  THE  A^IERICAN  BAR 

Royal  Governors.  In  none  of  the  Colonies  were  there  any 
published  reports  of  decided  cases,  prior  to  the  Revolution. 

In  all  of  the  Colonies,  the  question  of  whether  the  Com- 
mon Law  was  to  be  accepted  as  the  basis  of  the  Colonial 
Law  was  a  live  issue.  Some  Colonial  Legislatures  and 
courts  very  early  accepted  the  Common  Law  as  binding. 
In  others,  the  right  of  the  Colony  to  institute  or  adopt  the 
Common  Law,  or  such  parts  of  it  as  they  saw  fit,  was 
earnestly  maintained;  and  it  cannot  be  said  that  it  was 
generally  accepted  as  binding  until  many  years  after  the 
close  of  the  Seventeenth  Century.  Nothing,  however,  in 
the  early  legal  history  of  the  Colonies  is  more  striking  than 
the  uniformly  low  position  held  in  the  community  by  the 
members  of  the  legal  profession,  and  the  slight  part  which 
they  played  in  the  development  of  the  country  until  nearly 
the  middle  of  the  Eighteenth  Century.  In  every  one  of  the 
Colonies,  practically  throughout  the  Seventeenth  Century, 
a  lawyer  or  attorney  was  a  character  of  disrepute  and  of 
suspicion,  of  whose  standing  or  power  in  the  community 
the  ruling  class,  whether  it  was  the  clergy  as  in  New  Eng- 
land, or  the  merchants  as  in  New  York,  Maryland  and 
Virginia,  or  the  Quakers  as  in  Pennsylvania,  was  extremely 
jealous.  In  many  of  the  Colonies,  persons  acting  as  attor- 
neys were  forbidden  to  receive  any  fee;  in  some,  all  paid 
attorneys  were  barred  from  the  courts;  in  all,  they  were 
subjected  to  the  most  rigid  restrictions  as  to  fees  and 
procedure.^ 

It  is  perhaps  fair,  however,  in  reviewing  the  constant 
legislation  against  attorneys,  to  bear  in  mind  that  the  word 
"attorney,"  as  used  in  early  records  of  Colonial  cases  and 
statutes,  did  not  imply  necessarily  a  man  bred  to  the  law  or 
who  made  its  practise  an  exclusive  employment.     These 

'  For  a  work  treating  of  lawyers  in  the  various  Colonies,  see  The  Law- 
yers' Official  Oath  and  Office,  by  Josiah  H.  Benton  (1909). 


LAW  WITHOUT  LAWYERS  s 

"attorneys"  were  very  largely  traders,  factors,  land  specu- 
lators and  laymen  of  clever  penmanship  and  easy  volubility, 
whom  parties  employed  to  appear  and  talk  for  them  in  the 
courts.  The  few  persons  who  acted  as  professional  attor- 
neys were  at  first  mostly  pettifoggers,  or  minor  court  officers 
such  as  deputy  sheriffs,  clerks  and  justices,  who  stirred  up 
Htigation  for  the  sake  of  the  petty  court  fees.  This  latter 
practise  became  such  an  evil  that  in  most  of  the  Colonies 
statutes  were  passed  prohibiting  such  persons  acting  as 
attorneys. 

Nevertheless,  after  making  due  allowance  for  the  differ- 
ences in  the  use  of  the  word  "attorney,"  the  fact  remains 
that  the  development  of  the  law  as  a  profession  and  of 
lawyers  as  an  influential  class  in  the  community  w^as  a 
matter  of  remarkably  slow  growth  m  the  American  Colonies. 
The  responsibility  for  this  condition  may  be  attributed  to 
seven  different  factors,  var>'ing  in  weight  of  influence  in 
each  Colony,  all  of  which  will  be  clearly  shown,  as  the 
history  of  each  Colonial  Bar  is  separately  described  in  this 
book.    These  factors  may  be  summed  up  as  follows. 

In  the  first  place,  law  as  a  science  was  in  so  rigid  a  condi- 
tion that  it  failed  to  touch  the  popular  life.  The  Common 
Law  was  still  feudal  and  tyrannical.  The  people  felt  the 
restrictions  it  imposed,  and  knew  little  of  the  liberties  it 
guaranteed.^    As  has  been  weU  said: 

"It  is  not  altogether  strange  that  our  law  at  that  time 
should  seem  to  a  plain  Puritan  to  be  a  dark  and  knavish 
business;  for  it  was  still  heavily  encumbered  with  the  for- 
malism of  the  Middle  Ages.  It  was,  indeed,  already,  like 
Milton's  lion,  'pawing  to  get  free  its  hinder  parts;'  and 
there  was  a  sort  of  truth  in  Coke's  dithyrambic  praise  of  it, 
then  but  recently  published,  that  'reason  is  the  life  of  the 
law  —  nay,  the  common  law  itself  is  nothing  else  but  reason;' 
but  it  was  the  truth  of  prophecy,  and  not  the  truth  of  fact. 
The  law  also  was  then  mainly  hidden  away  from  laymen 


6  A  HISTORY  OF  THE  AMERICAN  BAR 

and  wrapped  in  a  foreign  tongue;  and  it  was  taught  at  the 
Inns  of  Court  in  the  rudest  way  —  '  hanc  rigidam  Miner- 
"uam'  said  Sir  Henry  Spelman,  a  contemporary  of  our 
founders,  ^ferrets  amplexihiis  coercendamJ  '  My  mother,'  said 
Spehnan,  'sent  me  to  London  to  begin  upon  our  law  '  (1570), 
'Ciijus  vestihulum  salutassem  reperissemque  linguam  pere- 
grinam,  dialectum  barbarum,  methodum  inconcinnam,  molem 
non  ingentem  solum  sed  perpetuis  humeris  sustinendam, 
excidit  mihi  (fateor)  animus.^  "  ^ 

In  the  second  place,  lawyers,  as  the  instruments  through 
which  the  subtleties  and  iniquities  of  the  Common  Law 
were  enforced,  were  highly  unpopular  as  a  class  in  England. 
John  Milton  expressed  the  general  low  opinion  of  the  aims 
of  the  profession  thus: 

"  Most  men  are  allured  to  the  trade  of  law,  grounding  their 
purposes  not  on  the  prudent  and  heavenly  contemplation 
of  justice  and  equity  which  was  never  taught  them,  but 
on  the  promising  and  pleasing  thoughts  of  htigious  terms, 
fat  contentions  and  flowing  fees." 

The  following  sentiments  expressed  in  an  anonymous 
book  published  in  England  in  1677,  entitled  A  Discourse 
on  The  Rise  and  Power  of  Parliamenty  were  echoed  in 
the  Colonies: 

There  was  Law  before  Lawyers;  there  was  a  time  when 
the  Common  Customs  of  the  land  were  sufficient  to  secure 
Meum  and  Tuum.  What  has  made  it  since  so  difficult? 
Nothing  but  the  Comments  of  Lawyers  confounding  the 
Text  and  writhing  the  Laws,  like  a  Nose  of  Wax,  to  what 
Figure  best  serves  their  purpose. 

And  the  lawyer's  reputation  in  London  may  be  estimated 
to  some  extent  by  the  titles  of  numerous  tracts  printed  in  the 
Seventeenth  Century,  such  as  the  following:  The  Downfall 

1  Speech  of  James  B.  Thayer  at  the  asoth  Commemoration  of  Harvard 
College,  Nov.  5,  1886. 


LAW  WITHOUT  LAWYERS     >^  7 

of  Unjust  Laivyers;  Doomsday  Drawing  Near  with  Thunder 
and  Lightning  for  Lawyers  (1645);  A  Rod  for  Lawyers  Who 
are  Hereby  declared  Robbers  and  Deceivers  of  the  Nation; 
Essay  Wlierein  is  Described  the  Lawyers,  Smugglers  and 
Officers  Frauds  (1659).  In  the  minds  of  many  English- 
men, moreover,  the  lawyer  was  synonymous  with  the 
cringing  Attorneys-General  and  Solicitors-General  of  the 
Crown  and  the  arbitrary  Justices  of  the  King's  Court,  all 
bent  on  the  conviction  of  those  who  opposed  the  King's 
prerogatives,  and  twisting  the  law  to  secure  convections. 

The  third  impediment  in  a  lawyer's  path  was  the  scanty 
materials  at  hand  in  the  Colonies  for  the  study  of  law,  the 
scarcity  of  printed  law  books  and  reports,  and  the  lack  of 
schools  of  law.  Even  in  England  at  the  end  of  the  Seven- 
teenth Century,  hardly  more  than  seventy  law  books  had 
been  pubhshed,  of  which  not  more  than  ten  or  fifteen  were 
known  in  the  Colonies,  and  less  than  one  hundred  volumes 
of  law  reports,  of  which  not  over  thirty  were  in  use  in  the 
Colonies. 

In  the  fourth  place,  lawyers  were  obliged  to  face  the 
hostility  of  rehgious  elements  in  the  community.  In 
Pennsylvania,  the  Quakers  were  opposed  to  anything  of  a 
litigious  tendency.  In  New  England,  the  clergy  for  a 
long  time  maintained  a  complete  supremacy  in  the  magis- 
tracy and  in  the  courts.  "During  the  period  from  1620  to 
1692,"  said  a  writer  in  the  North  American  Review,  in  1829, 
"no  trace  can  be  found  of  law  as  a  science  or  profession. 
The  clergy  possessed,  as  in  England,  much  of  the  legal 
knowledge  of  the  community."  ^  It  was  to  their  clerg>Tnen 
that  the  colonists  looked  to  guide  their  new  governments, 
and  in  their  clergymen,  they  believed,  lay  all  that  was 
necessary  and  proper  for  their  lawful  and  righteous  govern- 

*  See  review  of  American  Jurist,  Vol.  I,  in  North  American  Review,  Vol. 
XXIX  (Oct.  1829). 


8  A  HISTORY  OF  THE  AMERICAN  BAR 

ment.  It  followed,  therefore,  that  the  "Word  of  God" 
played  a  greater  part  in  the  progress  and  practise  of  the 
law  than  the  words  of  Bracton,  Littleton  or  Coke.  Where 
such  was  the  condition,  there  was  more  need  of  clever 
clergymen  than  of  trained  lawyers. 

Fifth,  in  New  York,  Maryland  and  Virginia,  there  was 
extreme  jealousy  felt  by  the  merchants  and  wealthy  land- 
owners and  planters  at  the  exercise  of  power  by  any  other 
class  in  the  community. 

Sixth,  the  participation  and  interference  of  the  Royal 
Governors  in  the  judicial  system  of  the  Colonies  nullified 
the  influence  of  a  trained  Bar.  As  early  as  1747,  Dr.  W. 
Douglass,  in  his  Summary  of  the  Present  State  oj  the  British 
Settlements  in  North  America,  wrote  that  "it  is  said  that  a 
Governor  and  such  of  the  council  as  he  thinks  proper  to 
consult  with,  dispense  with  such  provincial  laws  as  are 
troublesome  or  stand  in  their  way  of  procedure  of  their 
court  of  equity  so  called."  In  New  York,  a  Royal  Governor 
found  it  necessary  to  remove  a  Chief  Justice  who  failed  to 
decide  in  his  favor,  in  order  "to  discourage  advocates  of 
Boston  principles."  In  Maryland,  the  Bar  was  at  constant 
war  with  the  Governor  in  order  to  preserve  the  legal  rights 
of  the  Colony  from  the  arbitrary  dictates  and  proclamations 
of  the  executive.  In  South  Carolina,  the  lawyers  were 
forced  to  petition  the  proprietary  in  complaint  of  the 
Governor  holding  all  the  judicial  oflaces.^ 

Lastly,  such  was  the  ignorance  and  lack  of  legal  educa- 
tion of  the  judges  themselves  that  their  courts  offered 
little  opportunity  for  the  development  of  a  trained  and 
able  Bar. 

In  1764,  Thomas  Pownall,  "late  Gov.  Capt.  Gen.  Com- 
mander in  Chief  and  Vice-Admiral  of  His  Majesty's  Prov- 

1  See  especially  The  Provincial  Governor,  Chap.  VII,  by  Evarts  B.  Greene 
(1898). 


LAW  WITHOUT  LAWYERS  9 

inces,  Massachusetts  Bay  and  South  Carolina,  and  then 
Governor  of  New  Jersey,"  wrote:  ^ 

"I  cannot  in  one  view  better  describe  the  defects  of  the 
provincial  courts  in  these  infant  governments  than  by  that 
very  description  which  my  Lord  Chief  Justice  Hale  gives 
of  our  County  Courts  in  the  infancy  of  our  own  government; 
wherein  he  mentions,  First,  the  ignorance  of  the  judges, 
who  were  the  freeholders  of  the  county.  Secondly,  that 
these  various  courts  bred  variety  of  law,  especially  in  the 
several  counties;  for,  the  decisions  or  judgments  being 
made  by  divers  courts  and  several  independent  judges  and 
judiciaries  who  had  no  common  interest  amongst  them  in 
their  several  judicatories,  thereby  in  process  of  time  every 
several  county  would  have  several  laws,  customs,  rules  and 
forms  of  proceedings.  Upon  the  first  article  of  this  paral- 
lel it  would  be  no  dishonour  to  many  gentlemen  sitting  on 
the  benches  of  the  courts  of  law  in  the  Colonies  to  say  that 
they  are  not  and  cannot  be  expected  to  be  lawyers  or 
learned  in  the  law." 

And  Henry  W.  DeSaussure,  the  great  la^^er  and  Chan- 
cellor of  South  Carolina,  in  the  preface  to  his  Chancery 
Reports,  in  181 7,  described  the  early  Colonial  judges  as 
follows : 

"The  emigrants  brought  with  them  a  deep  abhorrence 
of  the  intolerance  and  tyranny  of  those  princes  [Charles  I, 
Charles  II,  James  II];  and  especially  of  the  great  abuses 
prevailing  in  the  courts  of  justice.  And  they  partook  of  the 
general  joy  in  the  prodigious  securities  obtained  in  the 
subsequent  reigns  for  civil  and  political  liberty;  among 
which,  the  establishment  of  the  independence  of  -the  judges 
formed  a  principal  feature.  Their  attachment  to  these 
principles  was  further  increased  by  the  mischiefs  resulting 
from  the  incautious  appointments  made  by  the  British 
government,  in  many  instances,  of  very  inferior  men  to 
preside  in  the  courts  of  justice  of  the  Colonies,  who  did  no 

^  The  Administration  oj  the  British  Colonies,  by  Thomas  Pownall  (1764). 


lo  A  HISTORY  OF  THE  AMERICAN  BAR 

honour  to  the  mother  country,  and  whose  irregularities 
and  improper  conduct  contributed  in  a  considerable  degree 
to  weaken  the  attachment  of  the  Colonies  to  the  govern- 
ment of  Great  Britain." 

The  development  of  the  American  lawyer  was  thus  re- 
tarded by  the  influence  of  all  these  factors  which,  however, 
varied  in  degree  of  effect  in  each  separate  Colony.  In  New 
England,  however,  the  lack  of  educated  lawyers  in  the 
Seventeenth  Century  is  especially  attributable  to  still 
another  cause  —  the  absence  of  any  respect  for,  or  binding 
authority  of,  the  English  Common  Law.^  Although  it  has 
so  frequently  been  announced  in  judicial  decisions  that, 

"  Our  ancestors  when  they  came  into  this  new  world 
claimed  the  Common  Law  as  their  birthright  and  brought 
it  with  them,  except  such  parts  as  were  judged  inappHcable 
to  their  new  state  and  condition  —  the  Common  Law  of 
their  native  country  as  it  was  amended  or  altered  by 
English  statutes  in  force  at  the  time  of  their  immigration,"  ^ 

it  was  never  historically  true  that  either  in  Massachusetts, 
Connecticut  or  Rhode  Island  did  the  colonists  recognize 
the  English  Common  Law  as  binding  ipso  facto.  So  far 
from  being  proud  of  it  "as  their  birthright,"  they  were,  in 
fact,  decidedly  anxious  to  escape  from  it  and  from  the  ideas 
connected  with  it  in  their  mind. 

The  Common  Law  was  neither  popular  nor  a  source  of 
pride  at  this  time,  even  in  England.^     It  was  a  period  when 

*  See  especially  English  Common  Law  in  The  Early  American  Colonies, 
by  Paul  F.  Reinsch  (1899). 

2  Parsons,  C.  J.,  in  Commonwealth  v.  KnowUon,  2  Mass.  p.  354  (1807). 
See  Shaw,  C.  J.,  in  Young  v.  Emery,  16  Pick.  p.  no  (1833).  And  see  Judge 
Story  in  his  Commentaries  on  the  Constitution,  and  in  Van  Ness  v.  Pacard, 
2  Peters,  144  (1829). 

'  Signs  of  the  dissatisfaction  with  the  state  of  the  law  in  England  may 
be  seen  from  the  flood  of  pamphlets  demanding  its  reform,  such  as:  Reforma- 
tion Proceedings  at  Law,  by  Thomas  Felds  in  1645;  Survey  of  the  English 
Laws,  their  Unsoundness  and  Corruption  Discovered,  by  F.  W.  in  1652;  Eng- 


LAW  WITHOUT  LAWYERS  ii 

Sir  Edward  Coke  had  been  removed  as  Chief  Justice  of 
King's  Bench  by  James  I,  in  1616.  The  judges  held  oflfice 
only  at  the  King's  pleasure.  The  Star  Chamber  Court  had 
flourished  under  Charles  I.  The  Chancellors  were  endeav- 
oring to  mitigate  some  of  the  harshness  and  irrationality 
and  technicahty  of  the  Common  Law  courts.  The  old  feu- 
dal tenures  were  extant,  with  all  their  follies  and  burdens. 

The  fact  is,  that  the  English  Common  Law,  from  1620 
to  1700,  was  in  force  in  New  England  only  so  far  as  it  was 
specifically  adopted  by  statute  —  or  so  far  as  the  colonists, 
by  custom,  had  assented  to  its  binding  force. 

Thus,  in  a  case  in  Massachusetts,  as  late  as  1687,  the 
defendant  pleaded  that  the  Magna  Charta  of  England  and 
the  statute  law,  "secure  the  subjects'  properties  and  estates 
....  To  which  was  replied  by  one  of  the  Judges,  the  rest  by 
silence  assenting,  *  We  must  not  think  the  laws  of  England 
follow  us  to  the  ends  of  the  earth  or  whither  we  went.'  "  ^ 

Chief  Justice  Atwood,  who  visited  Boston  in  1700,  in  his 
report  to  the  Lords  of  Trade,  states  that  he  had  "publicly 
exposed  the  argument  of  one  of  the  Boston  clergy  that  they 
were  not  bound  in  conscience  to  obey  the  laws  of  England;  "- 
and  he  notes  that  the  methods  of  the  courts  were  "abhorent 
from  the  Laws  of  England  and  all  other  nations." 

John  Adams  in  his  Novanglus  said,  even  in  1774: 

"How  then  do  we  New  Englanders  derive  our  laws.  I 
say  not  from  Parliament,  not  from  the  Common  Law;  but 

land's  Balme,  or  Proposals  by  way  of  Grievance  and  Remedy  towards  the 
Regulation  of  Law  and  Better  Administration  of  Justice,  by  William  Sheppard 
in  1657;  Certain  Proposals  for  Regulating  the  Law,  by  John  Shephcard  in 
1651;  Perspicuous  Compendium  of  Several  Irregularities  arid  Abuses  in 
Present  Practice  of  Common  Laws  of  England,  by  D.  W.,  in  1656;  Warr's 
The  Corruption  atid  Deficiency  of  the  Lazi's  of  England;  Jones'  An  Experi- 
mental Essay  touching  the  Reformation  of  the  Laws  of  England. 

*  Judicial  History  of  Massachusetts,  by  Emory  Washburn,  p.  106. 

2  Documents  relative  to  Colonial  History  of  New  York,  Vol.  IV,  p.  929. 


12  A  HISTORY  OF  THE  AMERICAN  BAR 

from  the  law  of  nature  and  the  compact  made  with  the 
King  in  our  charter,  our  ancestors  were  entitled  to  the 
Common  Law  of  England  when  they  emigrated ;  that  is  to 
say  to  as  much  of  it  as  they  pleased  to  adopt  and  no  more. 
They  were  not  bound  or  obUged  to  submit  to  it  unless  they 
chose."  ^ 

Connecticut  was  extremely  independent  of  the  Common 
Law;  and  as  Robert  Quary  reported  to  the  Board  of  Trade 
in  England:  "The  people  are  of  a  very  turbulent,  factious 
and  uneasy  temper.  I  cannot  give  their  character  better 
than  by  telHng  your  Lordships  that  they  have  made  a  body 
of  laws  for  their  government  which  are  printed;  the  first 
of  which  is  that  no  law  of  England  shall  be  in  force  in  their 
government  till  made  so  by  act  of  their  own."  ^  In  the 
famous  case  of  Winthrop  v.  Lechmere,  in  1728,  the  Colony's 
agent  in  London  was  instructed  to  argue  that  English 
Common  Law  could  be  binding  beyond  the  sea,  only  in 
case  it  had  been  accepted  by  the  colonists'  own  choice. 
"The  Common  Law  always  hath  its  limits  environ'd  by 
the  sea."  ^ 

In  fact,  Connecticut  never  adopted  the  Common  Law, 
even  by  statute.     Its  recognition  grew  up  through  usage  and 

1  Adams'  Life  and  Works,  Vol.  IV,  p.  122. 

Thomas  Jefferson  said  in  a  letter  to  Attorney-General  Rodney  Sept.  25, 
1810,  speaking  of  Levi  Lincoln  of  Massachusetts  as  a  possible  successor 
to  Gushing  as  Ghief  Justice  of  the  United  States  Supreme  Gourt:  "He 
is  not  thought  to  be  an  able  common  lawyer,  but  there  is  not  and  never 
was  an  able  one  in  the  New  England  States.  Their  system  is  sui  generis, 
in  which  the  common  law  is  little  attended  to." 

See  Jejerson's  Complete  Works,  Vol.  V,  p.  546.  As  to  Common  Law  in 
Massachusetts  Colony,  see  Tucker's  Blackstone,  Appendix,  Vol.  I,  p.  397  e/ 
seq. 

2  Quoted  in  The  Connecticut  Intestacy  Law,  by  Charles  M.  Andrews, 
Yale  Law  Jojirnal,  Vol.  Ill,  189. 

;  "  Governor  Talcolt  Papers,  Vol.  II,  Appendix.  These  instructions  were 
drawn  up  by  John  Read,  afterwards  the  leader  of  the  Bar  in  Boston,  in 
the  early  Eighteenth  Century. 


LAW  WITHOUT  LAWYERS  13 

custom  only,  and  was  coincident  with  the  first  professional 
education  of  la^vyers  and  judges.  As  the  Bar  grew  to  be 
composed  of  men  familiar  with  the  law  of  England  and  its 
reported  cases  and  commentaries,  the  legal  character  of  the 
bench  improved,  and  the  rules  of  Common  Law  gradually 
became,  by  judicial  application,  the  law  of  Connecticut. 
But  Judge  Jesse  Root,  in  the  preface  to  the  first  volume 
of  his  Reports,  as  late  as  1798,  denied  that  English  Law  had 
ever  been  applicable,  per  se : 

"Our  ancestors  who  emigrated  from  England  to  America 
were  possessed  of  the  knowledge  of  the  laws  and  jurispru- 
dence of  that  country;  but  were  free  from  any  obligations  of 
subjection  to  them.  The  laws  of  England  had  no  authority 
over  them  to  bind  their  persons,  nor  were  they  in  any  meas- 
ure applicable  to  their  condition  and  circumstances  here. 
...  In  every  respect  their  laws  were  inapplicable  to  an 
infant  country  or  state,  where  the  government  was  in  the 
people,  and  which  had  virtue  for  its  principle  and  the  public 
good  for  its  object  and  end;  where  the  tenure  of  land  was 
free  and  absolute,  the  objects  of  trade  few,  and  the  com- 
mission of  crimes  rare."  ^ 

In  Rhode  Island,  it  was  not  until  1770  that  by  statute 
the  Common  Law  was  formally  adopted,  as  follows: 

"In  all  actions,  matters,  causes  and  things  whatsoever 
where  no  particular  law  of  the  Colony  is  made  to  decide 
and  determine  the  same,  then  in  all  such  cases  the  Law  of 
England  shall  be  put  in  force  to  issue,  determine  and 
decide  the  same,  any  usage,  custom  or  law  to  the  contrary 
notwithstanding. ' ' 

The  real  fact  is,  that  during  these  years,  16 20- 1700,  the 
colonists  were  making  a  Common  Law  for  themselves ;  and 
their  usages  and  customs,  and  the  expedients  to  which  they 
were  forced,  in  order  to  adapt  their  rules  of  life  to  the 

'  See  Zephaniah  Swift's  System  of  Laws  of  Connecticut;  Peter's  History 
of  Connecticut. 


14  A  HISTORY  OF  THE_  AMERICAN  BAR 

surroundings  and  the  time,  gradually  hardened  into  positive 
rules  of  law.^ 

An  interesting  commentary  on  this  growth  of  an  American 
Common  Law  is  to  be  found  in  the  Diary  of  Ezra  Stiles, 
President  of  Yale  College  i^ 

"Jan.  6,  1773  —  Dined  ^ith  Judge  (Peter)  Oliver  (Chief 
Justice  of  Massachusetts)  and  spent  the  afternoon  to- 
gether. We  discoursed  on  the  extending  of  the  English 
Law  to  America,  whether  Statute  or  Common.  He  said 
all  the  Enghsh  statutes  before  the  Colonies  had  Existence 
were  to  be  extended  here  —  (a  singular  opinion)  —  aU 
made  since  with  extending  clauses  reached  us  —  those  made 
without,  etc.,  did  not  extend  here.  This  I  see  is  Court 
Law.  He  considered  the  Descent  of  Inheritance  in  Massa- 
chusetts as  being  neither  according  to  England  in  general 
or  Co.  of  Kent,  but  Mosaic.  He  said  by  Common  Law 
the  Estates  of  Felons  went  to  the  King,  in  Kent  to  the  chil- 
dren, in  New  England  to  the  children;  so  that  the  Common 

^  See  Parsons,  C.  J.,  in  Com.  v.  Knoivllon,  2  Mass.  p.  534  (1805). 

Shaw,  C.  J.,  in  Com.  v.  Chapman,  13  Mete.  p.  68  (1847). 

In  England,  in  1600,  Lord  Coke  was  deriving  Common  Law  from  usages 
and  precedents  three,  four  and  five  hundred  years  old;  but  in  Massachusetts 
in  1810,  customs  only  one  hundred  and  fifty  years  old  had  crystallized  into 
a  part  of  its  Common  Law. 

For  example,  a  practise  of  the  court  in  early  days,  of  proceeding  with 
the  suit  against  one  debtor,  when  the  other  lived  out  of  the  Colony  —  "a 
practise  originated  from  necessity"  in  the  early  Seventeenth  Century,  was 
held  in  1809  a  Common  Law  rule.     (Tappan  v.  Briien,  15  Mass.  19.) 

In  Campbell  V.  Johnson,  11  Mass.  p.  187  (1814),  it  was  held  that:  "Imme- 
morial usage  [i.  e.  usage  since  1620]  has  a  force  equally  binding  as  statutes;" 
and  see  Parker,  C.  J.,  in  Potter  v.  Hall,  3  Pick.  p.  373  (1825).  So  "the 
immemorial  usage  of  Massachusetts,  founded  on  necessity,"  of  a  wife  con- 
veying her  dower  by  joining  in  the  deed,  had  become  Common  Law  in 
Massachusetts  early  in  the  Eighteenth  Century.  "The  celebrated  Mr. 
Read,  the  first  lawyer  in  his  time,  resolved  this  usage  into  New  England 
Common  Law,"  said  Parsons,  C.  J.,  in  Fowler  v.  Shearer,  7  Mass.  21. 

So  the  statute  as  to  low-water  mark  ownership  of  Massachusetts  Bay 
Colony,  being  a  usage  and  practise  all  over  Massachusetts,  had  become 
a  Common  Law  rule  in  1832;  see  Shaw,  C.  J.,  in  Barker  v.  Bates,  13  Pick.  258. 

*  Literary  Diary  of  Ezra  Stiles,  Vol.  I,  p.  331  (1901). 


LAW  WITHOUT  LAWYERS  15 

Law  he  said  would  not  apply  to  New  England  in  this 
Case.  In  England  and  Massachusetts  no  Quaker  evidence 
by  affirmation  can  convict  capitally  —  Judge  (Frederick) 
Smyth  (Chief  Justice  of  New  Jersey)  told  Judge  Oliver 
that  when  he  came  to  Jersies  he  objected  this  but  they  all 
cried  out  their  usage  to  admit  Quaker  Testimony  in  capital 
cases  and  that  he  was  obliged  to  give  way  to  it,  tho'  different 
from  the  Laws  of  England.  We  also  discussed  on  Slavery 
of  Negroes  in  Virginia,  etc. ;  that  of  necessity  the  American 
Public  Law  must  dilTer  and  vary  from  the  Public  Law  of 
England." 

And  the  exact  status  of  American  law  was  strikingly 
expressed  by  Chief  Justice  William  Tilghman  of  Penn- 
sylvania, in  1813,  in  Poor  v.  Greene  (5  Binney,  554): 

"Every  country  has  its  Common  Law.  Ours  is  composed 
partly  of  the  Common  Law  of  England  and  partly  of  our 
own  usages.  When  our  ancestors  emigrated  from  Eng- 
land, they  took  with  them  such  of  the  English  principles 
as  were  convenient  for  the  situation  in  which  they  were 
about  to  place  themselves.  It  required  time  and  experience 
to  ascertain  how  much  of  the  English  law^  would  be  suitable 
to  this  country.  By  degrees,  as  circumstances  demanded, 
we  adopted  the  English  usages,  or  substituted  others  better 
suited  to  our  wants,  till  at  length  before  the  time  of  the 
Revolution  we  had  formed  a  system  of  our  own." 

And  by  Judge  John  Bannister  Gibson  in  Lyle  v.  Rich- 
ards (9  Serg.  &  Rawle,  322). in  1823: 

"To  a  greater  or  less  extent  there  necessarily  exists  in 
every  country  a  species  of  legislation  by  the  people  them- 
selves, which  in  England  and  in  this  country  is  the  founda- 
tion of  the  Common  Law  itself,  or  in  other  words  general 
custom  obtaining  by  common  consent.  ...  In  the  in- 
fancy of  this  Colony  it  produced  not  only  a  modification 
of  some  of  the  rules  of  the  Common  Law,  but  a  total  rejec- 
tion of  many  of  the  rest." 

The  absence  of  lawyers  in  the  Seventeenth  Century  is, 


i6  A  HISTORY  OF  THE  AMERICAN  BAR 

therefore,  easily  understood,  when  once  the  conditions 
described  above  are  appreciated.  When  English  prece- 
dents were  not  followed  or  used  as  a  guide  in  the  courts,  and 
the  courts  were  composed  of  clergymen  and  merchants,  of 
Governors  and  their  Deputies  or  Assistants,  of  politicians 
appointed  or  elected,  rather  than  of  trained  lawyers,  there 
was  no  real  need  or  scope  for  men  trained  in  English  law; 
and  no  real  lawyers  appeared  until  the  call  arose  for 
them. 

With  the  beginning  of  the  Eighteenth  Century,  however, 
a  new  set  of  factors  began  to  work  to  produce  the  American 
Bar,  which  soon  counteracted  the  old  retarding  influences. 
After  the  passing  of  the  troublous  times  of  James  II  and 
the  revocation  of  most  of  the  Colonial  charters,  and  after 
the  Treaty  of  Utrecht,  when  peace  was  established  on  two 
continents,  the  American  Colonies  rapidly  grew  in  wealth 
and  influence. 

Means  of  education  increased.  William  and  Mary  Col- 
lege was  founded  in  Virginia,  in  1692,  Yale  College,  in  1700, 
Kings  College  (Columbia),  in  New  York,  in  1754,  College 
of  New  Jersey  (Princeton),  at  Newark,  in  1746,  Brown  at 
Providence,  in  1764.  The  first  public  library  was  estab- 
lished in  New  York  in  1729,  consisting  of  1600  volumes. 
While  the  first  printing-press  had  been  brought  into  Massa- 
chusetts in  1629  and  set  up  at  Cambridge,  being  owned 
partially  by  Henry  Dunster,  President  of  Harvard  College, 
there  were  nine  printers  in  Massachusetts  prior  to  1692; 
and  the  first  paper  in  all  the  Colonies  was  published  in  1704, 
the  Bostoft  News  Letter. 

In  January,  1673,  the  first  monthly  postman  began  his 
trip  between  New  York  and  Boston.  In  1693,  the  first  act 
was  passed,  encouraging  "A  general  Letter  Office  in  Bos- 
ton." In  1704,  the  ofiice  of  "Deputy  Postmaster  General 
for  the  Colonies,"  located  in  New  York,  was  estabhshed  by 


LAW  WITHOUT  LAWYERS  17 

Act  of  Parliament.  In  1753,  Benjamin  Franklin,  then 
filling  this  office,  established  a  penny  post. 

There  was,  at  the  same  time,  a  very  rapid  extension  of 
commerce,  of  export  trade,  of  shipbuilding,  fisheries  and 
slavetrading.  A  class  of  rich  merchants  began  to  control 
in  the  community.  Questions  as  to  business  contracts 
and  business  paper  began  to  arise.  Land  grew  more 
valuable,  and  the  legal  determination  and  stabihty  of  landed 
rights  became  more  necessary.  Though  less  encumbered 
with  elaborate  trusts  and  settlements  than  in  England, 
wills  grew  more  complicated.  Important  questions  arose 
between  the  government  of  the  various  Colonies.  The 
poUtical  liberties  guaranteed  by  the  principles  of  the 
Enghsh  Common  Law  became  increasingly  more  vital  to 
the  colonists,  as  the  Royal  Governors  attempted  to  enlarge 
their  own  powers,  and  the  King  and  Parliament  began 
to  trespass  on  what  the  Colonies  regarded  as  their  own 
prerogatives. 

The  practise  of  the  law  became  more  extended  and  dis- 
ciplined. The  many  new  contingencies,  unprovided  for  by 
statute  or  local  custom,  forced  the  judges  to  go  to  the 
Common  Law  for  rules  of  decision.  The  precedents  spring- 
ing from  local  customs  themselves  became  numerous  and 
compUcated,  requiring  a  trained  body  of  men  to  interpret 
them.  And  so  arose  the  need  for  lawyers  versed  in  law  as 
a  science. 

This  need  was  supplied  at  first  by  barristers  imported 
from  England.  Soon,  however,  men  of  family  and  men  of  a 
collegiate  education  in  the  Colonies  began  to  enter  upon 
the  career  of  a  lawyer,  producing  a  marked  change  in  the 
character  of  the  profession;  and  though  law  schools  were 
lacking  and  law  books  were  scarce,  they  developed  to  a 
considerable  extent  into  masters  of  the  Common  Law. 

The  rise  of  Bar  Associations,  designed  to  dignify  the 


i8  A  HISTORY  OF  THE  AMERICAN  BAR 

profession,  in  excluding  from  practise  the  pettifoggers  and 
sharpers,  also  added  to  the  confidence  reposed  in  the  pro- 
fession by  the  community. 

Another  leading  influence  in  changing  the  standard  of 
ability  and  character  among  members  of  the  Bar,  and  in 
spurring  the  development  of  adequate  modes  of  legal 
instruction  in  the  Colonies,  was  the  growth  of  a  class  of 
Colonial  lawyers  who  received  their  education  in  the 
Enghsh  Inns  of  Courts.  This  growth  was  particularly 
marked  in  Maryland,  Pennsylvania,  Virginia  and  South 
CaroHna,  from  which  Colonies  nearly  one  hundred  and 
fifty  lawyers  were  educated  in  the  Inner  and  Middle  Tem- 
ple Inns  in  London  between  1750  and  1775.  .In  fact,  it 
may  be  said  without  exaggeration  that  the  American 
lawyer  of  the  late  Eighteenth  Century  was  the  product 
either  of  the  EngUsh  Inns  of  Court  or  of  the  American 
Colleges  —  Harvard,  Yale,  Princeton,  Brown  and  the 
College  of  William  and  Mary.  And  it  was  this  superior 
education  and  training  which  fitted  the  lawyer  of  the 
Eighteenth  Century  to  become  the  spokesman,  the  writer 
and  the  orator  of  the  people  when  the  people  were  forced 
to  look  for  champions  against  the  pretensions  of  the  Royal 
Governors  and  judges  and  of  the  British  Parliament.  So 
that  when  the  War  of  the  Revolution  broke  out,  the  lawyer, 
from  being  an  object  of  contempt  to  restrain  whom  restric- 
tive legislation  was  yearly  necessary  during  the  Seven- 
teenth Century,  had  become  the  leading  man  in  every  town 
in  the  country,  taking  rank  with  the  parish  clergyman  and 
the  family  doctor. 


\! 


CHAPTER  I 

ENGLISH   LAW,   LAW   BOOKS   AND   LAWYERS   IN  THE 
SEVENTEENTH   CENTURY 

The  slow  development  of  the  American  lawyer  during 
the  Seventeenth  Century  can  hardly  be  understood,  unless 
the  contemporaneous  state  of  the  law  and  of  lawyers  and 
of  legal  education  in  England  is  borne  in  mind. 

One  of  the  first  American-born  lawyers  to  study  law  in 
England  was  Benjamin  Lynde  of  Massachusetts,  who  was 
admitted  to  the  Middle  Temple  Inn,  in  1692. 

At  that  time,  the  Common  Law  as  a  system  to  be  studied 
from  reported  decisions  was  only  about  a  century  old. 
Those  cases  which  to  the  modern  student  are  almost  his 
earliest  landmarks,  were  then  to  be  found  in  reports  pub- 
hshed  only  a  few  years  before  the  Pilgrims  landed  at  Ply- 
mouth.   Thus,  Shelley's  case  (i  Coke  93)  had  been  decided 
in  1579-1581;    Thorogood's  case  (2  Coke  9),  on  fraud  in 
the  execution  of  a  deed,  in  1582;   Spencer's  case  (5  Coke 
16),  in  1583;   Calye's  case  (8  Coke  32),  on  the  liability  of 
innkeepers,  in  1584;  Slade's  case  (4  Coke  91),  which  estab- 
lished the  use  of  the  action  on  the  case  upon  assumpsit  in 
place  of  debt,  in  1603;   Twyne's  case  (3  Coke  80),  on  gifts 
in  fraud  of  creditors,  had  been  decided  in  1601;  Diimpor's 
case  (4  Coke  119),  on  waiver  of  forfeiture,  in  1603;  Lopus  v. 
Chandelor  (Cro.  Jac.  i),   the  Bezoar  Stone  case  on  war- 
ranties, in  1604;   Semayne's  case  (5  Coke  91),  on  sheriff's 
liabihty,  in  1605;   the  Six  Carpenters  case,  or   Vaux  v. 
Newman  (8  Coke  146),  on  trespass  ab  initio,  in  161 1;   the 
Sutton  Hospital  case  (10  Coke  i),  on  corporations,  in  1612; 


20  A  HISTORY  OF  THE  AMERICAN  BAR 

Lampleigh  v.  Braithwait  (Hobart  105),  on  consideration 
in  assumpsit,  in  16 16;  Manhy  v.  Scott  (i  Lev.  4),  on  a 
wife's  contract,  in  1659. 

While  the  Common  Law  on  its  civil  side  had  begun,  by 
1620,  to  provide  fairly  complete  and  even-handed  justice 
as  between  one  private  citizen  and  another,^  on  its  criminal 
side  it  was  a  source  of  horror  to  lovers  of  liberty  and  right, 
throughout  the  Seventeenth  Century.  Great  judges,  as  a 
rule,  were  hardly  possible  under  the  arbitrary  rule  of  the 
Stuarts  or  of  Cromwell.  The  State  Trials  were  trials  only 
in  name. 

In  1637,  about  the  time  when  Connecticut  was  being 
settled,  and  when  the  first  lawyer  of  record  appeared  in 
Maryland,  John  Hampden  was  being  tried  in  England  for 
refusing  to  pay  ship  money. 

In  1641,  the  year  when  Massachusetts  adopted  its  Body 
of  Liberties,  occurred  the  trial  for  treason  of  the  Earl  of 
Strafford;  and  two  years  later,  the  trial  of  William  Laud, 
Archbishop  of  Canterbury.  In  1649,  Chief  Justice  Rolle 
refusing  to  preside,  Ejng  Charles  I  was  tried  before  Lord 
President  Bradshaw  at  a  Special  High  Court  of  Justice, 
his  Une  of  defense  having  been  laid  out  by  Sir  Matthew  Hale. 
This  was  three  years  after  the  passage  of  the  statute  in 
Virginia  forbidding  attorneys  to  practise  for  pay. 

In  1660,  the  regicides  were  tried  for  treason  at  Old  Bailey 
before  Sir  Orlando  Bridgman,  Chief  Baron  of  the  Court  of 
Exchequer. 

In  1670,  WilHam  Penn  was  tried  for  "tumultuous  as- 
sembly." In  1683  came  the  trial  for  treason  of  Lord 
Russell  (the  Ryehouse  Plot  Case)  before  Sir  Francis  Pem- 
berton,  Chief  Justice  of  Common  Pleas,  and  of  Algernon 
Sydney  before  the  infamous  Lord  Chief  Justice  Jeffreys. 
This  was  the  year  when  a  writ  of  quo  warranto  was  issued  to 

»  The  Five  Ages  of  the  Bench  and  Bar  of  England,  by  John  M.  Zane. 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      21 

forfeit  the  charter  of  Massachusetts,  and  when  William 
Penn's  government  in  Pennsylvania  began. 

In  1685,  Lady  Alice  Lisle  had  been  tried  and  executed  by 
Jeffreys;  and  Titus  Gates  had  been  tried  for  perjury  and 
pilloried.  In  1688  occurred  the  trial  of  the  Seven  Bishops 
for  libel,  before  Lord  Chief  Justice  Wright;  this  was  four 
years  before  the  witchcraft  trials  in  Massachusetts,  and 
twenty-one  years  before  the  first  attorney  was  formally 
licensed  to  practise  in  New  York. 

In  the  midst  of  these  dark  times  of  the  law  in  England, 
however,  two  clear  lights  had  shone  out  in  the  persons 
of  the  great  Lord  Chief  Justices  —  Sir  Edward  Coke  and  Sir 
Matthew  Hale.  The  former  had  been  deposed  by  James  I, 
in  1616,  before  the  settlement  of  New  England.  The 
latter  had  been  head  of  the  Court  of  King's  Bench  from 
167 1  to  1676.  He  presided  in  1665  as  Chief  Baron  of  the 
Exchequer  at  the  witch  trials  in  Suffolk,  which  were  the 
prototype  of  those  occurring  twenty-seven  years  later  in 
Salem,  Massachusetts.^  In  1676,  he  presided  over  the  trial 
of  John  Bunyan,  the  tinker,  to  the  long  sentence  imposed 
on  whom  the  world  owes  Pilgrim's  Progress.  It  was  not, 
however,  the  historical  association  with  these  cases  to 
which  Hale  owes  his  fame  in  the  development  of  the  law. 
He  was  the  first  to  conceive  the  opinion  that  the  law  of 
England  was  capable  of  being  reduced  to  a  system  and 
created  scientifically.-    Since  the  reign  of  Edward  I,  there 

*  Chandler  in  his  American  Criminal  Trials  says  that  "the  account  of 
the  trial  of  witches  in  Suffolk  was  published  in  1684.  All  these  books  were  in 
New  England,  and  the  conformity  between  the  behaviour  of  Goodwin's 
children  and  most  of  the  supposed  bewitched  at  Salem  and  the  behaviour 
of  those  in  England,  is  so  exact  as  to  leave  no  room  to  doubt  the  stories  had 
been  read  by  the  New  England  persons  themselves  or  had  been  told  to  them 
by  others  who  had  read  them." 

*  See  Lecture  on  The  System  of  Law,  in  Life  of  Nathaniel  Chipman,  by 
Daniel  Chipman  (1S46). 


22  A  HISTORY  OF  THE  AMERICAN  BAR 

had  been  slight  change  in  the  laws  or  in  the  mode  of  admin- 
istering justice  in  England,  and  they  had  become  quite 
unsuited  to  the  altered  circumstances  of  the  country;  but 
in  1653  Hale  was  made  chairman  of  a  committee  on  law 
reform  of  which  Cromwell,  Sir  Algernon  Sydney  and  Sir 
Anthony  Ashley  Cooper  were  members.  He  drew  up  a 
plan  for  many  legal  reforms,  including  a  scheme  for  the 
recording  of  deeds;  but  England  was  not  ready  for  most  of 
these  innovations;  and  though  the  public  registry  of  deeds 
had  already  been  adopted  in  most  of  the  American  Colo- 
nies, this,  with  many  of  Hale's  other  suggestions,  failed  in 
the  more  conservative  country.  To  Hale,  however,  was 
largely  due  the  action  of  Parliament,  in  1649,  in  requiring 
the  use  of  the  English  language  in  law  books  and  pro- 
ceedings—  a  reform  which  lasted  until  the  Restoration 
of  Charles  II,  and  which  was  put  permanently  in  force  in 
173 1  (4  Geo.  II,  c.  26).^ 

A  new  era  for  the  Common  Law  and  a  revolution  in  its 
methods  was  initiated  when  the  Bill  of  Rights  was  granted 
in  1688,  under  which  the  judges  were  no  longer  to  hold 
office  at  the  King's  pleasure,  but  quam  diu  se  bene  gesserint. 
From  that  date  it  was  no  longer  possible  for  the  King  to  say, 
as  did  James  II:  "I  am  determined  to  have  twelve  lawyers 
for  judges  who  will  be  all  of  my  mind  as  to  this  matter;" 
bringing  forth  the  reply  of  Chief  Justice  Jones  of  the  Com- 
mon Pleas:  "Your  Majesty  may  find  twelve  judges  of 
your  mind,  but  hardly  twelve  lawyers."  ^ 

'  Campbell's  Lives  of  the  Chief  Justices,  Vol.  II,  p.  185.  As  early  as 
1609,  King  James  had  said  in  a  speech  when  the  Revised  Version  of  the  Bible 
was  nearly  ready  for  publication,  "I  wish  the  law  written  in  one  vulgar 
language;  for  now  it  is  an  old  mixt  and  corrupt  language  only  understood 
by  lawyers." 

It  may  be  noted  that  a  statute  as  early  as  1360  required  pleas  to 
be  made  in  the  English  language,  though  judgments  were  still  to  be 
enrolled  in  Latin. 

2  Campbell's  Lives  of  the  Chief  Justices,  Vol.  II,  p.  337. 


ENGLAND  IN  THE  SEVENTEENTH  CENTLTIY      23 

For  two  hundred  years  after  the  Norman  Conquest 
legal  proceedings  were  almost  entirely  in  the  hands  of  the 
clergy  as  the  only  class  versed  in  reading  and  in  knowledge 
of  civil  and  canon  law. 

The  first  learned  lay  lawyers  appeared  in  the  reign  of 
King  John;  and  finally,  in  Henry  Ill's  reign,  the  Pope  for- 
bade his  clergy  to  study  temporal  law  or  to  sit  in  lay  courts.^ 
Lawyers  as  a  separate  class  in  the  community  were  a  gradual 
development.  It  was  not  until  1235  that  parties  to  a  suit 
were  formally  permitted  by  statute  to  appear  by  attorney; 
and  for  many  years  no  attorney  could  appear  for  a  party 
except  by  special  Hcense  of  the  King.  In  1275,  the  First 
Statute  of  Westminster  recognized  and  extended  appear- 
ance by  attorney;  and  in  1283,  a  statute  allowed  attorneys 
made  by  written  warrant  to  appear  in  the  absence  of  the 
parties.^  By  1290,  there  appears  to  have  been  a  well- 
recognized  class  of  pleaders,  termed  Serjeants,  who  alone 
pleaded  the  cases  in  court.  The  Serjeants,  therefore,  are 
the  most  ancient  order  of  the  profession.  They  had  the 
exclusive  practise  in  the  Court  of  Common  Pleas,  and  from 
their  ranks  the  judges  were  always  chosen.  In  1292, 
Edward  I  ordered  that  the  justices  of  the  Court  of  Common 
Pleas  should  pro\dde  and  ordain  from  every  county  certain 
attorneys  and  apprentices  "of  the  best  and  most  apt  for 
their  learning  and  skill  who  might  do  service  to  his  court 
and  people;"  and  that  those  so  chosen  only,  and  no  other, 
should  attend  his  court  and  transact  the  affairs  therein. 
The  King  considered  one  hundred  and  forty  to  be  sufficient 
for  that  employment;  but  it  was  left  to  the  discretion  of  the 
justices  to  add  to  that  number  or  diminish  as  they  should 

*  Legal  Profession  in  England,  —  American  Law  Rane7v,  Vol.  XIX,  677. 
It  is  curious  to  find  this  history  reproduced  in  the  early  days  of  Massachu- 
setts when  the  clergy  again  were  the  preponderating  factor  in  the  law. 

2  See  The  Golden  Age  of  the  Common  Law,  by  John  M.  Zane,  Illinois 
Law  Rev.  (1907). 


24  A  HISTORY  OF  THE  AMERICAN  BAR 

see  fit.^  This  establishment  of  a  limit  for  the  number  of 
attorneys,  however,  does  not  seem  to  have  been  intended 
to  interfere  with  the  established  pleaders;  and  a  distinction 
seems  to  have  existed  even  then  between  the  two  classes 
of  la\vyers.^ 

The  ethics  of  legal  practise  were  early  fixed  on  a  high 
plane;  and  in  the  Miroir  des  Justices  (written  by  Andrew 
Home  about  1307,  in  the  reign  of  Edward  II)  it  was  laid 
down: 

"Every  pleader  is  to  be  charged  by  oath  that  he  will 
not  maintain  nor  defend  what  is  wrong  or  false  to  his 
knowledge,  but  will  fight  for  his  client  to  the  utmost  of  his 
ability;  thirdly,  he  to  put  on  before  the  Court  no  false 
delays;  nor  false  evidence,  nor  move  nor  offer  any  cor- 
ruptions, deceits,  tricks  or  false  lies,  nor  consent  to  any 
such,  but  truly  maintain  the  right  of  his  client,  so  that  it 
fail  not  through  any  folly,  negligence  or  default  in  him." 

It  is  interesting  to  note  that  the  first  statute  in  Eng- 
land on  the  subject  of  conspiracy,  enacted  in  1305,  re- 
ferred to  conspiracies  to  maintain  lawsuits.  It  defined 
conspirators  as  "  they  that  do  confeder  or  bind  them- 
selves together  by  oath,  covenant,  or  other  alliance," 
either  to  indict  or  maintain  lawsuits;  and  "  such  as  main- 
tain men  in  the  countrie  with  Hveries  or  fees  for  to  main- 
tain their  maHcious  enterprises,  —  and  this  extends  as 
well  to  the  takers  as  to  the  givers."  In  the  fear  of  the 
evil  practises  which  this  statute  shows  must  have  been 
prevalent  at  that  early  time,  there  may  be  seen  the  pro- 
totype of  conditions  which  gave  rise  to  so  much  legisla- 
tion against  fee-taking  lawyers  in  the  American  Colonies 
during  the  Seventeenth  Century. 

1  Pollock  and  Maitland's  History  of  English  Law,  Vol.  I. 

The  Constitutional  Power  of  the  Court  over  Admission  to  the  Bar,  —  Harv. 
Law  Rev.,  Vol.  XIII. 

2  A  History  of  the  English  Law,  by  W.  S.  Holdsworth,  Vol.  II  (1909). 

/ 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      25 

The  fact  that  the  English  Parliament  was  at  this  time, 
in  reality,  "  The  High  Court  of  Parliament"  —  a  law- 
declaring,  as  well  as  a  law-making,  body  —  is  notably 
shown  by  a  statute,  in  1362,  prohibiting  lawyers  from 
sitting  in  that  body,  because  of  their  interest  and  activity 
in  stirring  up  lawsuits  over  which  they  might  later  be 
in  a  position  to  act.^  This  same  legislation  was  enacted 
for  the  same  reason  in  the  Colonies  of  Massachusetts  and 
Rhode  Island,  three  hundred  years  later.^ 

In  1404,  lawyers  were  forbidden  election  to  Parliament 
by  the  King,  Henry  IV,  who,  without  the  sanction  of  that 
body,  issued  his  writ  of  summons  expressly  excluding 
choice  of  any  lawyer.  The  effect  of  this  exclusion,  and  the 
consequent  terming  of  this  body  the  "Lack-learning"  or 
''Dunce's"  Parliament,  is  quaintly  described  by  an  old 
law-writer,  Sir  Bulstrode  Whitelock,  in  his  Notes  upon  the 
King's  Writt: 

"The  King  being  in  great  want  of  money,  and  fearing 
that  if  the  lawyers  were  parliament  men  they  would  oppose 
his  excessive  demaunds^  and  liinder  liis  illegall  purposes 
(according  to  their  knowledge  and  learning  in  the  lawes 
and  pubUque  affayres);  to  prevent  this  the  King  issued 
forth  writs  of  summons  with  a  clause  of  'nolumus'  to  this 
effect:  'We  will  not  that  you  or  any  other  sherife  of  our 
kingdome  or  any  other  man  of  lawe  by  any  means  be  chosen.' 
This  parliament  was  held  6  Hen.  4,  and  was  called  the 
lacke-learning  parhament,  either  (saith  our  historian)  for  the 
unlearnedness  of  the  persons  or  for  their  malice  to  learned 
men.  It  is  stiled  by  Sir  Thomas  Walsingham  in  his  Mar- 
gent  'the  parliament  of  unlearned  men,'  and  from  them, 
thus  packed,  the  king  (saith  our  author)  obtained  a  graunt 
of  an  unusual  taxe  and  to  the  people  'full  of  trouble  and 
very  grievous. '  .  .  .  They  who  wl\\  have  a  '  nolumus '  of 
learned  senators  must  be  contented  with  a  'volumus'  of 

»  See  The    High    Court   of  Parliament,  by  C  H.  Mcllwain,  esp.   pp. 
214-216  (1910). 


26  A  HISTORY  OF  THE  AMERICAN  BAR 

uncouth  lawes  which  I  hope  will  never  be  the  fate  of 
England." 

In  1376,  Parliament  forbade  women  to  practise  law  or 
"  sue  in  court  by  way  of  maintenance  or  reward,"  espe- 
cially naming  one  Alice  Ferrars  (the  unpopular  mistress 
of  Edward  III). 

The  profession  was  very  early  placed  under  the  control 
of  the  courts;  and  in  1403,  in  the  reign  of  Henry  IV,  the 
attorneys  having  increased  to  two  thousand  in  nmnber,  an 
act  was  passed  requiring  that  all  attorneys  be  examined 
and  none  admitted  but  such  as  were  "virtuous,  learned  and 
sworn  to  do  their  duty;"  and  a  form  of  oath  was  framed,  on 
which  most  of  the  forms  of  oaths  prescribed  later  in  the 
American  Colonies  were  founded.  In  1413,  the  under- 
sheriffs,  clerks,  receivers  and  bailiffs  had  been  excluded  from 
practising  as  attorneys,  because  "the  King's  liege  people 
dare  not  pursue  or  complain  of  the  extortions  and  of  the 
oppressions  to  them  done  by  the  officers  or  sheriffs." 

It  is  interesting  to  note  that  legislation  of  precisely 
similar  character  was  found  necessary  three  hundred  years 
later  in  most  of  the  American  Colonies  from  1700  to  1750. 

Lawyers  as  a  class,  however,  incurred  to  a  considerable 
extent  a  popular  odium,  as  shown  in  the  outcry  against 
them  in  Wat  Tyler's  Rebellion  in  1381,  and  in  Jack  Cade's 
Rebellion  in  1450,  an  example  of  which  is  seen  in  Cade's 
proclamation:  "The  law  serveth  as  naught  else  in  these 
days  but  for  to  do  wrong,  for  nothing  is  sped  but  false  mat- 
ters by  color  of  the  law  for  mede,  drede  and  favor.' 


"  1 


1  See  also  Shakespeare's  Henry  VI,  Part  II,  Act  IV,  Scene  2.  "Dick 
the  Butcher  —  The  first  thing  we  do,  let 's  kill  all  the  lawyers. 

"  Cade  —  Nay,  that  I  mean  to  do.  Is  not  this  a  lamentable  thing,  that 
of  the  skin  of  an  innocent  lamb  should  be  made  parchment?  That  parch- 
ment being  scribbled  o'er,  should  undo  a  man.  Some  say:  the  bee  stings; 
but  I  say  't  is  the  bee's  wax,  for  I  did  but  seal  once  to  a  thing,  and  I  was 
never  mine  own  man  since." 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      27 

It  is  probable  that  this  unpopularity  was  due  in  large  part 
to  the  fact  that  the  practise  of  the  profession  of  the  law 
was  confined  to  the  upper  classes.  Fortescue  wrote  in  the 
Fifteenth  Century,  it  cost  twenty  marks  a  year  to  maintain 
a  student  in  one  of  the  Inns  of  Court,  "and  thus  it  falleth 
out  that  there  is  scant  any  man  founde  within  the  Realme 
skilfull  and  cunning  in  the  lawes,  except  he  be  a  gentleman 
borne,  and  come  of  a  noble  stock." 

With  the  rise  of  professional  attorneys,  controlled  by  the 
courts,  and  the  enlarged  powers  of  appointing  attorneys 
given  to  Utigants,  it  might  well  have  happened  that  the 
distinction  between  pleader  and  attorney  would  have  been 
obHterated.^  The  distinction  was  revived,  however,  by  the 
action  of  the  judges,  later  confirmed  by  statute,  in  granting 
to  those  bodies  known  as  the  Inns  of  Court  the  sole  power 
of  calling  lawyers  to  the  Bar,  i.  e.  giving  them  the  right  to 
plead  in  court  under  the  designation  of  barristers. 

The  growth  of  this  power  in  the  Inns  of  Court  is  a  peculiar 
and  interesting  development  in  English  legal  history.  As 
gradually  from  the  time  of  King  John  to  Edward  I,  the 
courts  became  localized  at  Westminster  Hall  in  London, 
the  lawyers  gathered  in  that  city  from  all  parts  of  the  king- 
dom, and  formed  there  a  kind  of  university  of  their  own  in 
certain  buildings  called  "Inns,"  where  instruction  was 
given  in  the  principles  of  Enghsh  Common  Law  and 
Statute  law  exclusively.  Gradually, "  Inns  of  Court "  came 
to  signify  the  four  Honourable  Societies  of  Lincoln's  Inn, 
Gray's  Inn,  The  Inner  Temple  and  The  Middle  Temple.^ 

This  popular  antagonism  to  lawyers  was  also  reproduced  in  America 
four  hundred  years  later,  as  seen  in  the  Shays'  Rebellion  in  IMassachusetts, 
in  1787. 

»  A  History  of  the  English  Law,  by  W.  S.  Holdsworth,  Vol.  II  (1909)- 
2  The  term  "Inn"  or  "Inne"  was  the  Saxon  equivalent  for  the  French 
"hostel,"  signifying,  not  a  public  place  of  entertainment,  but  the  private 
city  or  town  mansion  of  a  person  of  rank  or  wealth;  thus,  "Lincoln's  Inn" 


28  A  HISTORY  OF  THE  AMERICAN  BAR 

The  exact  origin  of  these  Inns  of  Court  is  unknown;  but 
they  probably  existed  in  their  present  form  in  the  reign  of 
Edward  III  in  1327.  Henry  III  had  taken  them  under  his 
special  protection,  and  in  1235  prohibited  the  study  of  law 
in  any  other  place  in  London  than  the  Inns  of  Court.  Little 
satisfactory  information,  however,  is  to  be  had  about  them 
until  the  time  of  Henry  VI  (1422-1461),  when  Sir  John 
Fortescue,  the  Chancellor,  sketched  them  in  detail  in  his 
De  Laiidihus  Legiim  Angliae. 

He  described  them  as  composed  of  four  large  Inns  of  about 
two  hundred  students  each,  and  ten  lesser  Inns  of  Chancery 
having  about  one  hundred  students  each.  The  students 
were  chiefly  young  men  of  birth.  In  1586,  the  number  of  stu- 
dents in  the  various  Inns  of  Court  and  Chancery  was  1,703. 

The  term  "barrister"  did  not  become  a  usual  name  until 
the  Sixteenth  Century;  and  the  severance  between  the  two 
branches  of  the  profession  dates  probably  from  an  order  of 
Lincoln's  Inn  in  1556,  as  follows:  "From  henceforth  no 
man  that  shall  exercise  the  office  of  Attorneyship  shall  be 
admitted  into  the  fellowship  of  this  House  without  consent 
of  six  of  the  Bench."  And  in  1557,  the  judges  made  a 
similar  order  that  attorneys  should  be  excluded  from  the 
Inns  of  Court. 

was  the  hostel  of  the  Earl  of  Lincoln  and  leased  to  lawyers  and  students 
of  law,  and  the  Inner  and  Middle  Temple  was  the  home  of  the  Knights 
Templar. 

See  especially  Laws  and  Jurisprudence  of  England  and  America,  by 
John  F.  Dillon,  Chapters  II,  III  and  IV,  for  much  information  about  the 
Inns  of  Court;  and  Aniiquilies  of  the  Inns  of  Court  and  Chancery,hy\V. 
Herbert  (1802). 

See  also  Education  for  the  English  Bar  in  the  Inns  of  Court,  —  Green  Bag, 
Vol.  XV;  and  for  an  elaborate  account  see  Introductory  Lecture,  by  David 
Hoilman  (1823). 

Even  as  early  as  the  reign  of  Henry  VIII,  when  Erasmus  visited  England, 
he  described  the  English  lawyer  as  "a  most  learned  species  of  profoundly 
ignorant  man."     See  Green  Bag,  Vol.  I,  p.  341. 


ENGLAND  IN  THE  SEVENTEENTH   CENTURY       29 

In  1606,  by  statute,  none  were  to  be  admitted  as  at- 
torneys in  the  courts  except  those  brought  up  in  the  Inns 
"well  practised  and  skilled  and  of  an  honest  disposition." 
The  only  persons,  therefore,  henceforth  entitled  and  ad- 
mitted to  practise  in  the  courts  were  those  who  had  been 
"called"  as  barristers  by  the  "benchers"  or  officers  of 
one  of  the  four  Inns  of  Court.  Attorneys  (officers  of 
the  Common  Law  Courts)  and  solicitors  (officers  of  the 
Courts  of  Chancery)  could  only  draw  writs  and  papers, 
and  instruct  the  barristers  as  to  the  matter  in  Htiga- 
tion;  and  they  were  generally  graduates  of  the  Inns  of 
Chancery. 

The  principal  methods  of  instruction  in  the  Inns  of  Court 
in  the  Seventeenth  Century  were  the  exercises  of  reading, 
bolting  and  mooting  of  cases.  There  were,  however,  no 
prescribed  attendance,  no  lectures  and  no  regular  course 
of  study,  a  student  being  simply  obliged  to  eat  three  din- 
ners (six,  in  case  of  a  non-University  man)  in  the  Hall  of 
the  Inn,  in  each  of  the  four  terms,  Hilary,  Easter,  Trinity 
and  Michaelmas;  and  after  "keeping"  a  certain  number 
of  terms  (at  different  periods,  seven,  ten  and  five  years) 
he  was  called  by  the  "benchers"  as  a  barrister.  The 
mooting  of  cases  consisted  of  arguments  by  barristers  who 
had  been  called  to  the  Bar,  or  by  students  who  had  become 
expert  "bolters,"  —  generally  at  meal-time  in  the  Hall  in 
the  presence  of  the  students.  Bolting  consisted  of  con- 
versational discussions  upon  cases  put  to  the  student  by 
a  bencher  or  two  barristers,  sitting  as  judges  in  private 
chambers.  The  readings  were  performed  by  two  Readers 
appointed  yearly  from  among  the  oldest  and  most  distin- 
guished barristers.  The  Reader  generally  chose  as  his 
topic  some  statute,  and  for  three  weeks  elaborated  on  it 
with  much  form  and  solemnity,  giving  out  cases  to  be 
argued  by  the  barristers  in  his  presence;  thus,  Littleton's 


30  A  HISTORY  OF  THE  AMERICAN  BAR 

was  on  the  Statute  De  Donis,  Bacon's  was  on  the  Statute 
of  Uses,  Dyer's  was  upon  the  Statute  of  Wills,  and  Coke's 
upon  the  Statute  of  Fines.  As  it  was  a  high  honor  to  be 
selected  as  Reader,  the  expense  of  the  feasts  given  by  him 
in  return  became  very  great;  and  finally  the  high  festival 
into  which  the  reading  developed  quite  overbalanced  the 
serious  portion  of  the  exercises.^ 

By  the  beginning  of  the  Eighteenth  Century,  even  the 
very  moderate  amount  of  instruction  given  through  the 
readings  and  moots  had  been  gradually  discontinued,  or 
had  failed,  because  of  inattendance  by  the  barristers  and 
students;  and  the  legal  education  received  became  almost 
nominal.  The  student  could,  if  he  chose,  carry  on  inde- 
pendent study;  but  no  assistance  was  given  to  him,  and  no 
examination  required.  In  fact,  the  Inns  were  legal  societies 
or  clubs,  rather  than  Law  Schools. 

In  spite  of  the  poor  facilities  for  acquiring  a  knowledge 
of  the  law,  it  is  interesting  to  note  what  course  of  reading 
a  law  student  of  the  Seventeenth  Century  was  expected  to 
pursue.  Thus  Rolle,  in  his  Abridgment  in  1668,  gives  the 
following  advice  to  students: 

"Spend  two  or  three  years  in  the  diligent  reading  of 
Littleton,  Perkins,  Doctor  and  Student,  Fitzherbert's  Natura 
Brevium,  and  especially  my  Lord  Coke's  Co?nmentaries, 
and  possibly  his  Reports.  .  .  .  After  two  or  three  years  so 
spent,  let  him  have  a  large  commonplace  book,  afterwards 
it  might  be  fit  to  read  the  Year  Book;  because  many  of  the 
elder  Year  Books  are  filled  with  law  not  so  much  in  use,  he 
may  single  out  for  his  constant  reading  such  as  are  most 
useful,  as  the  last  part  of  Edward  III,  the  Book  of  Assizes, 

1  See  The  Five  Ages  of  the  Bench  and  Bar  of  England,  by  John  M.  Zane. 
Pepys  in  his  Diary,  March  3,  1664-65  writes:  "To  see  Mrs.  Turner, 
who  takes  it  mighty  ill  I  did  not  come  to  dine  with  the  Reader  in  Law, 
her  husband,  which,  she  says,  was  the  greatest  feast  that  ever  was  yet 
kept  by  a  Reader,  and  I  believe  it  was  well.  But  I  am  glad  I  did  not 
go,  which  confirms  her  in  an  opinion  that  I  am  grown  proud." 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      31 

the  second  part  of  Henry  VI,  Edward  IV,  Henry  VII, 
and  so  come  down  in  order  and  succession  of  time  to  the 
latter  law,  viz.:  Plowden,  Dyer,  Coke's  Reports,  the  Second 
Term,  and  those  other  Reports  lately  printed." 

And  Lord  Coke  in  the  third  volume  of  his  Reports  says  : 

"Right  profitable  are  the  ancient  books  of  the  common 
law  yet  extant,  as  Glanville,  Bracton,  Britton,  Fleta,  Ingham 
and  Novae  Narrationes;  and  those  also  of  later  times,  as 
the  Old  Tenures,  Old  Natura  Brevium,  Littleton,  Doctor  and 
Student,  Perkins,  Fitzherbert,  Natura  Breuium  and  Stamford. 
If  the  Reader,  after  the  diligent  reading  of  the  case  shall 
observe  how  the  case  is  abridged  in  these  two  great  Abridg- 
ments of  Justice  Fitzherbert  and  Sir  Robert  Brooke,  it 
will  both  illustrate  the  case  and  delight  the  Reader;  and 
yet  neither  that  of  Statham  nor  that  of  the  Book  of  Assizes 
is  to  be  rejected;  and  for  pleading,  the  great  Book  of  En- 
tries is  of  similar  use  and  utility.  To  the  former  Reports, 
you  may  add  the  exquisite  and  elaborate  commentaries 
at  large  of  Master  Plowden  .  .  .  and  the  summary  and 
fruitful  observations  of  .  .  .  Sir  James  Dyer  .  .  .  and 
mine  own  simple  labours;  then  have  you  fifteen  books  or 
treatises  and  as  many  volumes  of  the  Reports  besides  the 
abridgments  of  the  common  law." 

It  is  interesting  also  to  note  that,  as  early  as  1600,  a 
book  of  instructions  to  law  students  had  been  pubhshed  — 
William  Fulbeck's  Direction  Preparative  to  the  Study  of  the 
Lawe ;  and  in  1667,  William  Phillips  pubhshed  a  second 
edition  of  his  Studii  Legalis  Ratio,  or  Directions  for  the  Study 
of  the  Law. 

The  absence  of  a  legal  profession  in  America  at  this 
time  can  be  better  understood,  perhaps,  if  one  bears  in 
mind  the  extremely  hmited  resources  on  which  the  student 
and  the  practitioner  of  law  in  England  had  at  this  time  to 
depend. 

In  the  year  1692,  at  the  time  of  the  estabUshment  of  the 
first  system  of  separate  courts  in  Massachusetts,  the  first 


32  A  HISTORY  OF  THE  AMERICAN  BAR 

printed  law  book  in  England  was  only  about  two  hundred 
years  old  —  Littleton's  Tejtures,  printed  in  1481  in  the 
reign  of  Henry  VI,  only  a  few  years  after  the  introduction 
of  the  printing-press  into  England. 

Before  the  beginning  of  the  Seventeenth  Century,  there 
were  comparatively  few  law  books  in  existence,  even  in 
manuscript,  and  of  these,  hardly  more  than  thirty  had  been 
printed.^ 

The  following  are  the  most  important  of  the  works  on 
law  which  were  at  the  disposal  of  lawyers  at  that  time : 

Ranulf  de  Glanville's  Treatise  on  the  Laws  and  Customs  0}  Eng- 
land, 1187-1189,  printed  about  1554-1557. 

Richard  Fitz-Neale's  Dialogus  de  Scaccario,  written  about  11 78. 

Henry  Bracton's  Laivs  and  Customs  of  England,  1262,  printed 
1569.  ^  ^  . 

John  Britten's  Abridgment,  about  1290,  printed  1540. 

Old  Tenures,  written  in  reign  of  Edward  HI,  printed  in  1525. 

Old  Natura  Brevium,  1328-1376,  printed  1524. 

Novae  Narrationes —  1448,  printed  about  1515. 

Littleton's  Tenures,  1472,  printed  1481. 

Nicholas  Statham's  Abridgment,  about  1476,  printed  about  1495. 

Nova  Statuta,  printed  1497. 

Anthony  Fitzherbert's  Grand  Abridgment  of  the  Law,  1514-1516. 

J.  Rastell's  Expositions  of  the  Terms  of  the  Laws  of  England,  1567. 

W.  Rastell's  Register  Original,  1531. 

Phaer's  Book  of  Presidents,  1576. 

Boke  for  a  Justice  of  the  Peace,  and  Returna  Brevium  (1538). 

Diversity  of  the  Courts,  1561 

Saint  Germain's  Doctor  and  Student,  15 18-1522. 

Rastell's  Entries,  1566. 

'  See  Dugdale's  Origincs  Juridiciales  (1666)  as  to  law  books  of  this 
period,  also  Reeves'  History  of  the  English  Law;  also  Laiv  and  Lawyers,  by 
W.  L.  Willis,  in  American  Quarterly  Review,  Vols.  XIII-XIV;  The  Common 
Law,  by  Charles  P.  Daly  (1894) ;  The  Sources  of  English  Law,  by  H.  Brunner; 
Materials  for  the  History  of  English  Law,  by  F.  W.  Maitland,  Pol.  Sci.  Qu., 
Vol.  IV  (1889). 

The  dates  given  for  the  law  books  in  the  text  are  in  general  stated  as 
given  in  A  History  of  English  Law,  by  W.  S.  Holdsworth  (1909). 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      33 

John  Perkins'  Profitable  Book  of  Conveyancing,  1532. 

William  Staunford's  Pleas  of  the  Croum,  1557. 

Brooke's  Grand  Abridgment  of  the  Law,  1568. 

'Loxnhaxd's  Archaiomea,  1568. 

Pulton's  Abstract  of  the  Penal  Statutes,  1577. 

Theloal's  Digest  of  Original  Writs,  1579. 

Eitchen's  Courts,  1579. 

Lombard's  Eisenachia,  1581. 

Vetera  Statuta,  1588. 

Manwood's  Forest  Law,  1598. 

Fleta's  Commentary,  about  1290,  printed  1647. 

Ralph  de  Hengham's  Register  of  Writs,  1300,  printed  1616. 

Andrew  Home's  Miroir  des  Justices,  about  1307,  printed  1642. 

Fortescue's  De  Laudibus  Legum  Angliae,  about  1460. 

Until  the  decree  of  Pariiament  of  1649,  requiring  all 
reports  to  be  in  English,  almost  all  law  books  had  been  in 
Norman  French  or  Larin,  for  the  reason,  as  Coke  says  in  the 
Preface  to  the  third  volume  of  his  Reports, 

"It  was  not  thought  fit  nor  convenient  to  publish  either 
those  or  any  of  the  statutes  enacted  in  these  days  in  the 
vulgar  tongue  lest  the  unlearned  by  bare  reading  without 
understanding  might  suck  out  errors  and  trusting  to  their 
own  conceit  might  endanger  themselves  and  some  times  fall 
into  destruction." 

During  the  Seventeenth  Century,  the  law  books  of  chief 
importance  had  been  the  following:  West's  Symholeo- 
graphy  was  printed  about  1601.  In  1605,  Cowell's  Institutes 
had  appeared;  in  1606,  Cowell's  Interpreter,  and  in  1607, 
Cowell's  Dictionary;  ^  Swinbornc  on  Wills  and  Testaments, 
in  1611;  Dalton's  Justice  of  the  Peace,  in  1612;  Finch's 
Common  Law  of  England,  in  1613;-  Spelman's  Glossary  in 

^  These  three  books  were  largely  used  by  law  students  and  passed  into 
many  editions  down  to  as  late  as  1727.  Cowell's  Institutes  received  the 
compliment  of  being  translated  into  English  by  direction  of  order  of  Par- 
liament in  1651. 

2  Regarded  as  the  best  elementary  book  for  students  until  the  publica- 
tion of  Blackstone,  in  1765. 


34  A  HISTORY  OF  THE  AMERICAN  BAR 

1626.  Lord  Bacon's  great  work  (though  small  in  size),  on 
Elements  of  the  Common  Laws  of  England,  was  published  in 
1630.^  And  just  about  the  same  time,  Lord  Coke  put  forth 
his  famous  Institutes  —  the  first  volume,  Commentary  on 
Littleton,  in  1628.  His  Exposition  of  Magna  Charta  was 
pubHshed  in  1642,  after  his  death;  Pleas  of  the  Crown, 
in  1644,  and  Jurisdiction  of  Courts,  in  1644.  In  163 1 
came  Doddridge's  English  Lawyer;  in  1646-1648  March's 
Slander;  in  1653,  Brownlow's  Declarations  and  Pleadings. 

In  1 64 1  was  published  Sheppard's  Touchstone  of  Common 
Assurance;  in  1655,  Wingate's  Body  of  the  Common  Law  of 
England;  in  1656,  William  Sheppard  wrote  his  Abridgment; 
in  1656  appeared  Booth's  Examen  Legum  Angliae;  and  in 
1659  the  first  EngUsh  law  book  on  Corporations,  entitled 
Of  Corporations,  Fraternities  and  Guilds.^ 

In  1666,  Sir  William  Dugdale  wrote  his  famous  Origines 
Juridiciales,  the  mine  from  which  comes  a  large  part  of  our 
information  as  to  English  laws,  writs,  judges,  attorneys  and 
Serjeants.  In  1668  appeared  Chief  Justice  Rolle's  Abridg- 
ment.^ In  1678  appeared  Hale's  Pleas  of  the  Crown.  In 
1680  and  1689  appeared  two  books,  much  used  by  the 
American  colonists  later.  Sir  John  Hawle's  The  English- 
man's Right  and  Henry  Care's  English  Liberties. 

The  earhest  reports  of  cases  had  been,  of  course,  the  Year 
Books,  which  first  began  to  be  printed  about  148 1,  and 

*  The  full  title  of  this  famous  book  is  of  interest:  "The  Elements  of  the 
Common  Lawes  of  England  branched  into  a  Double  Tract :  the  one  conlayning 
a  Collection  of  some  principall  Rules  and  Maxims  of  the  Common  Law,  etc.; 
the  other  the  Use  of  the  Common  Law  for  Preservation  of  our  Persons,  Goods, 
and  Good  Names,  according  to  the  Lawes  and  Customes  of  the  Land." 

"^  See  especially  as  to  this  The  First  Book  in  English  on  the  Law  of  Cor- 
porations, by  Amasa  M.  Eaton,  —  Yale  Law  Journal,  Vol.  XIV  (1903). 

'  There  were  also  a  few  books  on  the  law  merchant  and  admiralty  law, 
such  as  Malynes'  Lex  Mercatoria  or  Ancient  Law  Merchant  (1622);  Davies 
on  Impositions  (1656);  Godolphus'  View  of  Admiralty  (1686);  Prynne's 
Animadversions  (1669);  Zouch's  Jurisdiction  of  the  Admiralty  (1686). 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      35 

covered  cases  from  about  1280  in  Edward  I's  reign  to  1537 
in  Henry  VIII's.^ 

During  the  next  one  hundred  years  down  to  the  time  of 
the  Commonwealth  there  had  only  been  a  few  volumes  of  re- 
ports —  those  of  Plowden,  Dyer,  Keilway,  Benlow,  Dalison, 
Davies,  Hobart,  Bellewe  and  Coke,  about  fifteen  in  all.- 

These  few  reports,  together  with  a  small  number  of 
authoritative  reports  published  in  the  reign  of  Charles  II, 
such  as  Croke  (1657),  Leoiiard  (1658),  Yeherton  (1661), 
Rolle  (1675),  W.  Jones  (1675),  Vaughan  (1677)  and  Saund- 
ers (1686),  were  practically  the  only  reports  known  in  the 
American  Colonies,  and  substantially  the  only  ones  having 
any  weight  in  England  as  law. 

Nevertheless,  during  the  time  of  the  Commonwealth  and 
the  later  Stuarts  (1649-1689)  a  flood  of  other  reports  had 
burst  from  the  press,  —  nearly  fifty  volumes.^ 

1  For  full  account  of  these,  see  Year  Book  Bibliography  —  Harvard  Law 
Review,  Vol.  XIV. 

2  The  first  volume  of  The  Commentaries  or  Reports  of  Edward  Plowden 
of  the  Inner  Temple,  An  Apprentice  of  the  Common  Law,  had  been  published 
in  1571;  the  volumes  covering  roughly  the  times  of  Edward  III  to  Elizabeth 
(1350-1580),  and  their  value  consisting  largely  in  the  fact  that  while  many 
of  the  early  reports  and  year  books  contained  the  off-hand  opinions  of  the 
judges  upon  motions,  all  of  Plowden's  cases  were  "upon  points  of  law  tried 
and  debated." 

Sir  James  Dyer's  Notes  (Chief  Justice  of  Common  Pleas)  had  been 
the  next  cases  printed  as  Reports,  a  posthumous  work,  in  1585;  and  Keil- 
way and  Bellewe  had  also  come  out  in  Elizabeth's  reign.  Lord  Coke's 
Reports  (which  were  really  Commentaries),  had  been  published  from  1601 
to  16 16,  when  he  was  Attorney-General  and  Chief  Justice  of  the  Common 
Pleas  and  of  the  King's  Bench,  and  covered  nearly  completely  the  law  of 
the  reigns  of  Elizabeth  and  James  I;  each  case  generally  containing  the  full 
pleadings  and  often  a  treatise  on  the  point  at  issue.  Of  them  Lord  Bacon 
had  said,  "Had  it  not  been  for  Sir  Edward  Coke's  Reports  ...  the  law 
by  this  time  had  been  almost  like  a  ship  without  ballast  for  that  the  cases 
of  modem  experience  are  fled  from  those  that  are  adjudged  and  ruled  in 
former  time." 

»  See  Wallace's  The  Reporters  (1845);  The  English  Law  Reporters,— 
Harvard  Law  Review,  Vol.  XV. 


36  A  HISTORY  OF  THE  AMERICAN  BAR 

Of  this  raking  up  of  old  cases  and  precedents  Wallace  in 
his  book  on  the  Reporters  says: 

'  "It  was  the  mistake  of  Charles  I,  that  for  nearly  the 
whole  of  his  arbitrarymeasures  he  endeavoured  to  obtain  the 
sanction  of  the  common  law.  Noy,  his  Attorney-General, 
had  found  in  the  recesses  of  his  recondite  lore  some  prece- 
dents which  relieved  the  King  of  most  of  his  difficulties 
...  for  they  gave  to  the  Crown  the  powers  of  the  people 
.  .  .  and  Charles  .  .  .  assumed  them  as  authority.  This 
brought  the  law  into  unnatural  prominence." 

Most  of  these  reports  were  worthless  as  law,  and  in  general 
it  may  be  said  that  they  completely  disregarded  Bulstrode's 
advice,  given  in  the  preface  of  his  second  volmne:  "That 
as  the  laws  are  the  anchor  of  the  Republic,  so  the  Judicial 
Reports  are  as  anchors  of  the  laws  and  therefore  ought  to 
be  well  weighed  before  put  out."  ^ 

"  Few,  if  any,  of  these  reports  were  known  in  the  American 
Colonies. 

As  to  the  Chancery  reports  at  this  time  (1692),  scarcely 
any  existed.  In  fact,  the  decrees  of  Lord  Ellesmere,  who 
had  been  Lord  Chancellor  from  1596  to  1617,  were  practi- 
cally the  first  to  be  recorded  to  any  extent.    The  decrees  of 

In  1662  the  act  was  passed  requiring  the  licensing  of  printed  publications; 
and  under  this,  until  1692,  all  law  books  were  required  to  bear  the  im- 
primatur of  the  Lord  Chancellor,  the  Lord  Chief  Justice  or  the  Lord  Chief 
Baron. 

1  Most  of  the  reports  were  well  described  in  1657  by  Sir  Harbottle  Grim- 
stone  (later  Master  of  the  Rolls),  "a  mulUtude  of  flying  reports,  whose 
authors  were  as  uncertain  as  the  times  when  taken,  have  of  late  surrep- 
titiously crept  forth.  We  have  been  entertained  with  barren  and  unwar- 
ranted products  which  not  only  tends  to  the  depriving  of  the  first  grounds 
and  reasoning  of  the  young  practitioner,  who  by  such  false  lights  is  mis- 
led, but  also  to  the  contempt  of  divers  of  our  former  grave  and  learned 
justices." 

Chief  Justice  Holt  in  later  days  also  complained  bitterly  of  his  reporters, 
saying  that  the  "  skimblescamble  stuff  which  they  published  would  make 
posterity  think  ill  of  his  understanding." 


ENGLAND  IN  THE  SEVENTEENTH  CENTURY      37 

the  early  chancellors  —  politicians  and  ecclesiastics  as  they 
were  —  as  well  as  the  decrees  of  the  later  lawyer  chancellors, 
headed  by  Sir  Thomas  More,  had  been,  as  Blackstone  said, 
"rather  in  the  nature  of  awards  formed  on  the  sudden  .  .  . 
with  more  probity  of  intention  than  knowledge  of  the  sub- 
ject, founded  on  no  settled  principles,  as  being  never  de- 
signed, and  therefore  never  used  for  precedents."  And  as 
WTiitelock  said:  "A  keeper  of  the  seal  has  nothing  but  his 
own  conscience  to  direct  him,  and  that  is  sometimes  deceit- 
ful." This  was  the  "Roguish  Equity,"  of  which  Selden 
spoke  in  his  Table  Talk,  "which  varied  with  the  length 
of  the  Chancellor's  foot."  ^ 

There  was  therefore  no  scope  or  reason  for  reports  of 
their  decisions;  and  the  only  Chancery  reports  covering 
this  time  were  hardly  more  than  brief  notes  on  procedure, 
"reports  shadowy,  obscure  and  flickering,"  as  Judge 
Story  called  them.^ 

Such  was  the  meagre  list  of  Common  Law  and  Chancery 
reports,  less  than  one  hundred  in  all,  from  which  English 
students  and  lawyers  of  the  Seventeenth  Century  were 
obliged  to  extract  the  law,  and  out  of  which  English  judges 
had  built  and  were  building  the  fabric  of  the  Common  Law 
of  England. 

Yet  to  such  an  extent  had  this  Century  increased  the  roll 
of  law  books  as  compared  with  the  previous  Sixteenth 

1  Wallace  says:  "Though  the  binding  nature  of  precedent  in  equity 
is  said  to  have  been  acknowledged  a  good  while  ago  by  Bridgman  (i  ]Mod. 
307)  and  Lord  C.  J.Treby  (3  Chanc.  Cas.95),it  is  yet  true  as  a  general  thing 
at  any  rate  that  until  the  time  of  Lord  Hardwicke  equity  was  administered 
pretty  much  according  to  what  appeared  to  be  good  conscience  applied  to 
the  case." 

2  Carey  (1557-1604),  Choyce  Cases  in  Chancery  (1557-1606),  TothiU 
(1559-1646),  Reports  in  Chancery  (1616-1710),  Nelson  (1625-1693),  Cases  in 
Chamery  (1660-1690),  Freeman  (1676-1706),  Finch  (1673-16S0),  Swan- 
ston,  Vernon  (1681-1720).  See  Vidal  v.  Cily  of  Philadelphia  (2  Howard 
193)- 


38  A  HISTORY  OF  THE  AlVIERICAN  .  BAR 

Century,  that  the  writer  of  the  preface  of  5  Modern  (171 1), 
describing  eighty  volumes  of  the  Common  Law,  said: 

"Thus  I  have  given  an  historical  account  of  our  reports 
which  a  country  lawyer  (who  was  afterwards  advanced  to  a 
seat  of  justice)  told  the  Bar  were  too  voluminous,  for  when 
he  was  a  student  he  could  carry  a  complete  Hbrary  of  books 
in  a  wheelbarrow,  but  they  were  so  wonderfully  increased 
in  a  few  years  they  could  not  then  be  drawn  in  a  waggon." 


CHAPTER   II 

THE    COLONIAL    BAR    OF    \TRGINIA    AND    MARYLAND 

The  history  of  lawyers  in  Virginia  is  a  peculiar  one,  for 
in  no  Colony  was  the  early  prejudice  against  the  profession 
stronger,  and  in  none  did  a  more  eminent  Bar  develop. 

The  binding  force  of  the  Common  Law  was  early  recog- 
nized ;  and  in  the  preamble  to  the  revision  of  the  statute  laws 
made  in  1660-1661  it  was  stated:  "We  have  endeavored  in 
all  things  (as  near  as  the  capacity  and  constitution  of  this 
country  would  admit)  to  adhere  to  these  excellent  and 
often  refined  laws  of  England  to  which  we  profess  and 
acknowledge  all  our  obedience  and  reverence."  Hugh 
Jones,  in  his  Present  State  oj  Virginia,  wrote,  in  1724,  that 
Virginia  was 

"ruled  by  the  laws,  customs,  and  constitution  of  Great 
Britain  which  it  strictly  observes,  only  where  the  circum- 
stance and  occasion  of  the  country  by  an  absolute  necessity 
requires  some  small  alteration,  which  nevertheless  inust  not 
be  contrary  (though  different  from  and  subservient)  to 
the  Laws  of  England." 

And  Judge  Story  in  his  Commentaries  on  the  Constitution 
remarks  that: 

"The  laws  of  Virginia  during  its  colonial  state  do  not 
exhibit  as  many  marked  deviations  in  the  general  structure 
of  its  institutions  and  civil  poHty  from  those  of  the  parent 
country  as  those  in  the  northern  colonies.  The  Common 
Law  was  recognized  as  the  general  basis  of  its  jurisprudence 
—  and  expressly  provided  for  in  all  the  charters  .  .  .  and 
was  ...  in  its  leading  features  very  acceptable  to  the 
colonists." 


40  A  HISTORY  OF  THE  AMERICAN  BAR 

In  the  earliest  days  of  the  Colony,  the  Governor  was  the 
sole  fountain  of  justice;  and  in  the  instructions  laid  down 
for  Sir  Thomas  Gates,  Governor  in  1609  under  the  Pro- 
prietary Charter  of  1606,  it  was  enjoined  that: 

"In  all  matters  of  Civill  Justice  you  shall  find  it  properest 
.ind  usefullest  for  your  government  to  proceede  rather  as 
I  Chancellor  than  as  a  Judge,  rather  uppon  the  naturall 
right  and  equity  than  uppon  the  niceness  and  lettre  of  the 
lawe  which  perplexeth  in  this  tender  body  rather  than 
dispatcheth  all  causes;  so  that  a  summary  and  arbitrary 
way  of  Justice  discreetly  mingled  with  those  gravities  and 
fourmes  of  magistracy  as  shall  in  your  discrecon  seeme 
aptest  for  you  and  that  place,  will  be  of  most  use  both  for 
expedition  and  example." 

In  the  same  year,  a  civil  code  was  prepared  entitled 
"Lawes  and  Orders  Divine  PoHtique  and  Martiall  for  the 
Colony  of  Virginia."  In  1618,  provision  was  made  for  two 
judicial  bodies,  the  Governor  and  Council,  and  the  Assembly. 
This  latter  body,  composed  of  twenty-two  elected  burgesses 
and  the  Governor  and  Council,  convened  at  Jamestown, 
July  30,  16 1 9,  the  first  Enghsh  legislative  body  in  America; 
and  on  the  second  day  of  its  sittuig  constituted  itself  a 
Court  to  try  one  Thomas  Garret  for  indecent  behavior, 
and  later  in  the  session  it  heard  a  civil  case.  In  1643,  a 
judicial  system  was  established,  much  resembling  that  of 
Massachusetts,  consisting  of  County  Courts  (begun  in 
1623-1624)  composed  of  local  wealthy  planters,  with  an 
appeal  to  the  Quarter  Courts  (or  General  Court  as  they 
were  termed  after  1662),  composed  of  the  Governor  and  his 
Councillors  (thirteen  in  niunber  at  first,  later  nineteen, 
and  still  later  sixteen).  There  was  also  an  appeal  in  some 
matters  to  the  General  Assembly.  As  early  as  1661-1662, 
an  act  was  passed,  regulating  very  precisely  the  procedure 
of  the  courts  and  requiring  all  declarations,  answers  and 
evidence  to  be  preserved. 


THE  COLONIAL  BAR  OF  VIRGINL^  AND  MARYLAND    41 

Notwithstanding  the  early  acceptance  of  the  English 
Common  Law  as  the  basis  for  its  own  law,  Virginia  produced 
no  trained  Bar  for  nearly  one  hundred  years.  This  condi- 
tion was  undoubtedly  due  to  the  fact  that  its  governing 
class  was  practically  a  landed  aristocracy,  conservative  and 
extremely  jealous  of  any  other  power.  The  Colony,  how- 
ever, seems  to  have  been  troubled  from  an  early  date  with 
the  lower  class  of  petty  attorneys ;  and  the  problem  of  how 
to  control  these  attorneys  appears  to  have  perplexed  Vir- 
ginia more  than  any  other  Colony. 

As  early  as  164 2- 1643,  under  an  act  "for  the  better  reg- 
ulating of  attorneys  and  the  great  fees  exacted  by  them," 
fees  were  confined  to  twenty  pounds  of  tobacco  in  the 
County  Court  and  forty  pounds  in  the  Quarter  Court: 
attorneys  were  forbidden  to  plead  without  obtaining  li- 
cense from  the  court;  they  could  not  plead  in  more  than 
the  "Quarter  Court  and  one  County  Court;"  and  they 
could  not  refuse  to  be  "entertayned  in  any  cause"  under 
heavy  fines  to  be  paid  in  tobacco.  This  act,  however,  did 
not  apply  to  "such  who  shall  be  made  speciall  attorneys 
within  the  collony  or  to  such  who  shall  have  letters  of 
procuration  out  of  England." 

In  1645,  it  was  provided  that  "whereas  many  trouble- 
som  suits  are  multipHed  by  the  unskilfulness  and  covetous- 
ness  of  attorneys  who  have  more  intended  their  own  profit 
and  their  inordinate  lucre  than  the  good  and  benefit  of  their 
clients,  be  it  therefore  enacted  that  all  mercenary  attorneys^ 
be  wholly  expelled  from  such  office."  In  1647,  the  courts, 
if  they  perceived  that  either  party  was  like  to  lose  his  cause 
"by  his  weakness,"  were  themselves  to  "open  the  cause" 
or  to  "appoint  some  fitt  man  out  of  the  people  to  plead 
the  cause  .  .  .  and  not  to  allow  any  other  attorneys  in 

*  The  word  "mercenary"  here  meant  only  "serving  for  pay  or  fees." 
It  did  not  have  the  opprobrious  definition  later  given  to  the  word. 


42  A  HISTORY  OF  THE  AMERICAN  BAR 

private  causes  betwixt  man  and  man  in  the  country;"  and 
attorneys  were  forbidden  to  "take  any  recompence  either 
directly  or  indirectly."  This  Mercenary  Attorney  Act  was 
repealed  in  1656;  and  provision  was  made  for  licensing 
attorneys.  The  next  year,  however,  trouble  apparently 
having  again  arisen,  all  fees  were  taken  away  from  attor- 
neys; and  "whereas  there  doth  much  charge  and  trouble 
arise  by  the  admittance  of  attorneys  and  lawyers  through 
pleading  of  causes  thereby  to  maintain  suites  in  lawes  to 
the  great  prejudice  and  charge  of  the  inhabitants  of  this 
collony,"  they  were  forbidden  to  plead  in  any  court  "or 
give  counsel  in  any  cause  or  controversie,  for  any  kind  of 
reward  or  profitt,"  on  penalty  of  five  thousand  pounds  of 
tobacco,  and  were  required  to  swear,  when  they  appeared 
in  any  cause,  that  they  had  not  violated  this  Act,  "because 
the  breakers  thereof  through  their  subtillity  cannot  easily 
bee  discerned." 

In  1680,  however,  a  law  was  passed  again,  allowing 
attorneys  to  practise  under  rigid  restrictions  and  after 
license  by  the  Governor. 

The  following  reason  for  this  reversal  of  policy  was  given 
in  the  preamble  to  the  statute: 

"Whereas  all  courts  in  the  country  are  many  tymes 
hindered  and  troubled  in  their  judiciall  proceedings  by  the 
impertinent  discourses  of  many  busy  and  ignorant  men 
who  will  pretend  to  assist  their  friend  in  his  business  and 
to  cleare  the  matter  more  plainly  to  the  court,  although 
never  desired  nor  requested  thereunto  by  the  person 
whom  they  pretended  to  assist  and  many  tymes  to  the 
destruction  of  his  cause  and  the  greate  trouble  and  hin- 
drance of  the  court." 

This  act,  being  found  "inconvenient,"  was  repealed 
after  two  years;  but  the  repealing  act  was  itself  annulled 
by  royal  proclamation.  As  late  as  1705,  Beverly  wrote  in 
his  History  and  Present  State  of  Virginia : 


THE  COLONIAL  BAR  OF  VIRGINM  AND  MARYLAND    43 

"Every  one  that  pleases  may  plead  his  own  cause,  or 
else  his  friends  for  Mm,  there  being  no  restraint  in  that 
case,  nor  any  licensed  Practitioners  in  the  law." 

In  1732,  however,  another  statute  was  passed  declaring 
that  "the  number  of  unskilled  attorneys  practising  at  the 
County  Courts  is  become  a  great  grievance  to  the  country 
in  respect  to  their  neglect  and  mismanagement  of  their 
clients'  causes  and  other  foul  practices,"  and  providing  for 
licenses  for  the  admission  of  lawyers,  upon  the  taking  of  an 
oath  (the  form  of  oath  being  practically  that  in  use  in  the 
New  England  Colonies).  There  appears  to  have  been  a 
distinction,  however,  at  this  time,  between  that  class  of 
men  who  practised  only  in  the  County  Courts  and  those 
who  appeared  in  the  General  Court;  for  this  statute  of  1732 
provided  that  it  should  not  be  construed  to  extend  "to  any 
attorney  who  at  the  time  of  passing  thereof  is  a  practitioner 
in  the  General  Court  or  to  any  counsellor  or  barrister  at 
law  whatsoever."  This  reference  to  the  distinction  between 
attorneys  and  barristers  is  one  of  the  earliest  in  all  American 
Colonial  legislation  or  court  rules. 

Finally,  in  1748,  a  general  statute  provided  for  licensing 
of  all  lawyers  and  also  a  form  of  oath  to  be  taken  by 
them. 

All  this  early  legislation  was  directed  probably  not  so 
much  against  the  legal  profession  itself,  as  against  the 
character  of  the  men  who  composed  it.  Most  of  the 
attorneys  were  mere  charlatans,  men  of  no  character  or 
influence.  As  Judge  Minor  said  in  his  Institutes,^  "for 
fully  a  century,  the  lawyer  seems  to  fortune  and  to  fame 
unknown,"  not  one  of  them  having  attained  a  notoriety 
or  distinction  worthy  of  a  biographer.  John  Fiske  says 
that  "they  were  frequently  recruited  by  white  freedmen, 
whose  career  of  rascaUty  as  attorneys  in  England  had 
1  Minor's  InsHtules,  Vol.  IV,  p.  168  (1875). 


44  A  HISTORY  OF  THE  AMERICAN  BAR 

suddenly  ended  in  penal  servitude."  Although  this 
statement  is  unqualifiedly  denied  by  a  Virginia  lawyer, 
claiming  that  there  are  no  records  to  sustain  it/  there  is 
record  in  1736  of  one,  Henry  Justice,  an  English  barrister 
of  the  Middle  Temple,  who  was  convicted  of  stealing  a 
Bible  and  other  books  from  Trinity  College  Library  in 
Cambridge  and  sentenced  to  transportation  to  Virginia.^ 

The  fact  undoubtedly  is  that  the  litigation  in  the  courts 
was  so  simple,  and  so  exclusively  confined  to  commercial 
matters  (actions  of  debt  and  on  bonds),  that  it  was  largely 
entrusted  to  the  prominent  ofi&cials  and  wealthy  merchants 
and  planters.^  The  business  was  not  lucrative  enough  to 
attract  educated  English  lawyers;  and  above  all,  the  ruling 
class  in  Virginia  were  the  landowners,  who  eyed  with  sus- 
picion the  rise  of  any  other  class  to  positions  of  influence 
in  the  community.  Moreover,  the  courts  themselves  were 
composed  almost  exclusively  of  these  landed  gentry,  who 
had  no  trained  knowledge  of  law,  and  in  practising  before 
whom  such  knowledge  was  of  little  avail.  Thomas  Jeffer- 
son well  described  the  condition  of  practise  as  late  as  the 
middle  of  the  Eighteenth  Century  as  follows: 

"When  I  was  at  the  Bar  of  the  General  Court,  there  were 
in  the  possession  of  John  Randolph,  Attorney  General, 
three  volumes  of  MSS.  reports  of  cases  determined  in  that 

1  Lawyers  of  the  Seventeenth  Century,  —  William  and  Mary  College 
Quarterly,  Vol.  VIII. 

2  Old  Virginia,  Vol.  II,  by  John  Fiske. 

»  Thus  in  York  County  Records,  of  the  names  of  thirteen  men  who 
appeared  on  the  docket  as  attorneys  between  1640  and  1675,  with  the  excep- 
tion of  William  Sherwood  (who  was  a  trained  lawyer)  and  John  Holdcraft 
and  William  Swinnerton,  all  were  either  planters  or  merchants  prominent  in 
the  community;  Francis  Willis,  James  Bray,  Thomas  Bullard,  John  Page 
and  Daniel  Parke  becoming  members  of  the  Virginia  Council;  WiUiam 
Hockaday,  Thomas  Bushrod,  Dr.  Robert  Ellyson,  Gideon  Macon  being  at 
different  times  members  of  the  House  of  Burgesses  and  Karbry  KJggars. 
(See  William  and  Mary  College  Quarterly,  Vol.  VIII.) 


THE  COLONL\L  BAR  OF  VIRGINIA  AND  MARYLAND     45 

Court,  the  one  taken  by  his  father,  Sir  John  Randolph,  a 
second  by  Mr.  Barradall,  and  a  third  by  Hopkins.  These 
were  the  most  eminent  of  the  counsel  at  the  Bar  and  give 
us  the  measure  of  its  talent  at  that  day.  All,  I  believe,  had 
studied  law  at  the  Temple  in  England,  and  had  taken  the 
degree  of  Barrister  there.  The  volumes  comprehended 
decisions  of  the  General  Court  from  1730  to  1740,  as  well 
on  cases  of  EngUsh  law  as  on  those  peculiar  to  our  own 
country.  The  former  were  of  little  value  because  the 
Judges  of  that  Court  consisting  of  the  King's  Privy  Coun- 
sellors only,  chosen  from  among  the  gentlemen  of  the  coun- 
try, for  their  wealth  and  standing,  without  any  regard  to 
legal  knowledge,  their  decisions  could  never  be  quoted, 
either  as  adding  to,  or  detracting  from  the  weight  of  those 
of  the  English  courts  on  the  same  points.  Whereas  on  our 
peculiar  laws,  their  judgments,  whether  formed  on  correct 
principles  of  law  or  not,  were  of  conclusive  authority.  As 
precedents,  they  established  conclusively  the  construction 
of  our  own  enactments  and  gave  them  the  shape  and 
meaning  under  which  our  property  has  been  ever  since 
transmitted  and  is  regulated  and  held  to  this  day."  ^ 

In  1680,  there  were  thirty- three  lawyers  in  the  Colony; 
but  with  the  exception  of  the  Royal  Attorneys-General, 
and  Benjamin  Harrison,  and  William  Fitzhugh,  who  was 
born  in  1651  and  educated  as  a  lawyer  in  England,  no 
lawyers  of  any  note  appear  to  have  been  in  practise  in  the 
Seventeenth  Century.^ 

In  the  early  Eighteenth  Century,  most  of  the  Virginia 
lawyers  had  received  an  Inns  of  Court  education  in  England. 
Prominent  among  them  were  William  Byrd  of  Westover, 
who,  bom  in  1674,  studied  law  in  the  Middle  Temple, 
collected  the  finest  library  in  the  American  Colonies,  and 
died  in  1743;  John  Clayton,  who,  born  in  1665,  studied 

'  Preface  to  Reports  of  Cases  Determined  in  the  General  Court  of  Virginia 
from  1730  to  1740,  by  Thomas  JefiFerson  (1829). 
*  See  Virginia  Magazine,  Vol.  I. 


46  A  HISTORY  OF  THE  AMERICAN  BAR 

law  in  the  Inner  Temple,  was  made  Attorney- General  of 
Virginia  in  1714  and  died  in  1737;  Edward  Barradale,  who, 
born  in  1704,  was  Attorney- General  and  Judge  of  Admiralty, 
and  died  in  1 743 ;  William  Hopkins,  a  well-educated  lawyer 
who  practised  in  Virginia  for  twelve  years  prior  to  1734; 
Sir  John  Randolph,  who,  born  in  1693,  graduated  at  the 
College  of  WilUam  and  Mary,  studied  law  at  Gray's  Inn 
and  the  Temple  in  London,  and  ranked  at  his  death,  in  1737, 
as  one  of  the  great  practitioners  in  America;  Stevens 
Thomson,  one  of  the  early  Attorneys-General,  and  John 
Ambler,  who  practised  between  1735  and  1766,  both  of  whom 
had  studied  in  the  Middle  Temple. 

The  lawyer  of  largest  general  reputation,  prior  to  his 
death  in  1734,  was  probably  John  Holloway,  who  had  been 
an  attorney  of  the  Marshalsea  Court  in  London.  Though 
described  by  Sir  John  Randolph  as  relying  more  on  learning 
and  the  subtle  artifices  of  an  attorney  than  the  solid  reason- 
ing of  a  lawyer,  his  opinions  were  looked  upon  as  authorita- 
tive, and  his  fees  were  exorbitant.  Between  the  years  1750 
and  1775,  there  was  a  marked  growth  in  the  size  and  ability 
of  the  Virginia  Bar;  and  there  arose  a  group  of  lawyers, 
most  of  whom  were  educated  either  at  Princeton,  William 
and  Mary,  or  in  the  EngUsh  Universities  or  Inns  of  Court, 
and  whose  political  and  legal  talents  placed  Virginia  in 
the  forefront  of  the  American  Colonies.  Among  these  were 
Peyton  Randolph,^  John  Randolph,^  Edmund  Pendleton,^ 

*  Bom  in  1721,  a  graduate  of  William  and  Mary  College,  of  Oxford,  of 
the  Inner  Temple,  King's  Attorney-General  in  Virginia  in  1748,  President  of 
the  first  Congress  in  1774. 

2  Brother  of  Peyton,  bom  in  1727,  educated  at  William  and  Mary  and 
the  Inner  Temple,  Attorney-General  in  1766,  "One  of  the  most  splendid 
monuments  of  the  Bar,"  says  Wirt,  "a  polite  scholar  as  well  as  a  profound 
law>'er,"  and  who  left  Virginia  in  1775  as  a  Tory  refugee. 

'  Born  in  1721,  examined  and  licensed  to  practise  law  "by  the  eminent 
lawyer  Barradale"  in  1744,  Chief  Justice  of  Virginia  Court  of  Appeals  in 
1779. 


THE  COLONIAL  BAR  OF  \1RGIXL\  AND  MARYLAND    47 

John  Blair/  John  Lewis,^  George  Wythe,^  Robert  Carter 
Nicholas,"  Thomas  Jefferson/  John  Tylcr,^  Dabney  Carr/ 
Peter  Lyons,  George  Johnson,  Paul  Carrington,  George 
Mason,^  Richard  Henry  Lee,^  and  Patrick  Henry .^^ 

1  Born  in  1732,  graduate  of  William  and  Mary  College,  a  student  in  the 
Temple,  in  1779  Chief  Justice  of  Virginia  Court  of  Appeals,  in  1789  Judge 
of  the  United  States  Supreme  Court. 

2  In  whose  office  the  eminent  George  Wythe  studied. 

8  Bom  in  1726,  admitted  to  the  Bar  in  1756,  Professor  of  Law  in  1780 
in  the  College  of  William  and  Mary,  sole  chancellor  of  the  Court  of  Equity 
in  1788,  the  legal  teacher  of  Jefferson,  who  called  him  "my  faithful  and 
beloved  mentor  in  youth  and  my  most  affectionate  friend  through  life," 
instructor  also  of  Marshall,  Madison  and  Monroe,  of  whom  Wythe  once 
remarked  that  "all  three  would  at  least  become  'Minent.'  " 

<  Born  in  1715,  graduate  of  William  and  Mary  College,  and  in  1779 
judge  of  High  Court  of  Chancery  and  of  Court  of  Appeals. 

s  Born  in  1743,  admitted  to  the  Bar  in  1767,  after  nearly  five  years' 
study  and  preparation  in  the  office  of  George  Wythe  and  others. 

6  Born  in  1747,  studied  law  in  office  of  R.  C.  Nicholas,  Judge  of  the 
General  Court  1788-1808,  Governor,  1808-1811,  United  States  District 
Judge  1S11-1813. 

">  Born  in  1744- 

8  Bom  in  1725,  the  author  in  1776  of  the  Virginia  Constitution,  the 
first  wxitten  constitution  of  a  free  commonwealth,  pronounced  by  IVIad- 
ison  in  the  debates  on  the  Federal  Constitution,  "the  ablest  man  in  debate 
he  had  ever  seen." 

fl  Born  in  1732,  a  student  in  the  Temple,  returned  to  Virginia  in  1752, 
never  actively  practised. 

1"  Born  in  1736,  admitted  to  practise  in  1760,  sprang  into  instant  fame  by 
his  argument  of  the  "Parsons  Case"  in  1763.  This  case  is  interesting  as  an 
illustration  of  the  fact  that  practically  all  the  cases  in  which  American  law- 
yers in  the  Eighteenth  Century  gained  distinction  were  of  a  political  nature. 
The  facts  were,  that  as  far  back  as  1696,  each  minister  of  a  parish  had  been 
provided  with  an  annual  stipend  of  16,000  pounds  of  tobacco,  at  ten  shillings 
eight  pence  per  100  pounds.  In  1755,  the  tobacco  crop  fell  short;  and  the 
Legislature  passed  an  act,  to  continue  for  ten  months,  allowing  persons  from 
whom  any  tobacco  was  due,  to  pay  in  tobacco  or  in  money  at  the  rate  of 
sixteen  shillings  eight  pence  per  100  pounds,  at  the  option  of  the  debtor. 
Rich  planters  benefited  by  paying  their  debts  at  this  rate  and  getting  from 
fifty  to  sixty  shillings  for  their  tobacco. 

In  1758,  on  a  surmise  of  a  short  crop,  a  similar  act  was  passed.  The 
price  rose  to  fifty  shillings.    The  King  in  Council  denounced  the  act  as 


48  A  HISTORY  OF  THE  AMERICAN  BAR 

This  Virginia  Bar  before  the  Revolution  was  thus  inter- 
estingly summed  up  by  St.  George  Tucker  in  a  letter  to 
William  Wirt  in  1813: 

"Literary  characters  may  leave  their  works  behind  them, 
as  memorials  of  what  they  were;  soldiers  may  obtain  a 
niche  in  the  temple  of  Fame,  by  some  brilliant  exploit; 
orators,  whose  speeches  have  been  preserved,  will  be  remem- 
bered through  that  medium;  judges,  whose  opinions  have 
been  reported,  may  possibly  be  known  to  future  judges,  and 
members  of  the  bar;  but  the  world  cares  little  about  them; 
and  if  they  leave  no  reports,  or  meet  with  no  reporter  to 
record  their  opinions,  etc.,  they  sink  into  immediate  obliv- 
ion. I  very  much  doubt  if  a  single  speech  of  Richard  H. 
Lee's  can  be  produced  at  this  day.  Nevertheless,  he  was 
the  most  mellifluous  orator  that  ever  I  Hstened  to.  Who 
knows  any  thing  of  Peyton  Randolph,  once  the  most  pop- 
ular man  in  Virginia,  Speaker  of  the  House  of  Burgesses, 
and  President  of  Congress,  from  its  first  assembling,  to 
the  day  of  his  death?  Who  remembers  Thompson  Mason, 
—  esteemed  the  first  law^xr  at  the  bar?  Or  his  brother, 
George  Mason,  of  whom  I  have  heard  Mr.  Madison,  (the 
present  President),  say,  that  he  possessed  the  greatest 
talents  for  debate  of  any  man  he  had  ever  seen,  or  heard 
speak.  What  is  known  of  Dabney  Carr,  but  that  he  made 
the  motion  for  appointing  committees  of  correspondence 
in  1773?  Virginia  has  produced  few  men  of  finer  talents, 
as  I  have  repeatedly  heard.  I  might  name  a  number  of 
others,  highly  respected  and  influential  men  in  their  day. 
The  Delegates  to  the  first  Congress,  in  1774,  were  Peyton 
Randolph,  Edmund  Pendleton,  Patrick  Henry,  George 
Washington,  Richard  H.  Lee,  Richard  Bland  and  Benjamin 
Harrison.  Jefferson,  Wythe  and  Madison  did  not  come 
in  till  afterwards.  This  alone  may  show  what  estimation 
the  former  were  held  in:  yet,  how  little  is  known  of  one- 

a  usurpation.  The  Clergy  resolved  to  test  the  question,  and  suit  was  begun 
by  Rev.  James  Maury  against  the  Collector  of  the  County,  in  1762,  with 
Peter  Lyons  for  the  plaintiff  and  the  able  and  widely  known  John  Lewis  for 
the  defendant.  The  first  trial  resulted  in  a  victory  for  the  plaintiff;  the 
second  was  won  by  Patrick  Henry  for  the  defendant. 


THE  COLONIAL  BAR  OF  VIRGINU  AND  MARYLAND    49 

half  of  them  at  this  day?  The  truth  is,  that  Socrates  him- 
self would  pass  unnoticed  and  forgotten  in  Virginia,  if  he 
were  not  a  pubUc  character,  and  some  of  his  speeches 
preserved  in  a  newspaper:  the  latter  might  keep  his  memory 
alive  for  a  year  or  two,  but  not  much  longer."  ^ 

Maryland 

From  the  foundation  of  Maryland  in  1634,  its  colonists 
claimed  to  be  governed  by  the  Common  Law,  notwith- 
standing the  opposition  of  the  Proprietor,  who  asserted  that 
this  was  an  interference  with  his  absolute  right  to  govern 
under  the  charter  granted  to  him.  In  1642,  however,  the 
Colonial  Assembly  or  Legislature  so  far  prevailed  as  to 
adopt  the  following  "Act  for  Rule  of  Judicature:  " 

"  Right  and  just  in  all  civil  causes  shall  be  determined 
according  to  the  law  or  most  general  usage  of  the  Province 
since  its  plantation  or  former  presid'ts  of  the  same  or  Uke 
nature  to  be  determined  by  the  judge.  And  in  defect  of 
such  law,  usage  or  president,  then  right  and  just  shall  be 
determined  according  to  equity  and  good  conscience,  not 
neglecting,  —  so  far  as  the  judge  or  judges  shall  be  in- 
formed thereof  and  shall  find  no  inconvenience  in  the  ap- 
plication to  this  Province,  —  the  rules  by  which  right  and 
just  useth  and  ought  to  be  determined  in  England  in  the 
same  or  the  Uke  case.  And  all  crimes  and  offences  shall 
be  judged  and  determined  according  to  the  law  of  the 
Province,  or  in  defect  of  certain  law  then  they  may  be 
determined  according  to  the  best  discretion  of  the  judge 
or  judges,  judging  as  near  as  conveniently  may  be  to  the 
laudable  law  of  usage  of  England  in  the  same  or  like 
offences." 

As  early  as  1662,  an  act  was  passed  declaring  that  when 
the  laws  of  the  Province  were  sUent,  justice  was  to  be  ad- 
ministered according  to  the  laws  and  statutes  of  England, 

»  Memoirs  of  William  Wirt,  by  John  P.  Kennedy  (1849)- 


so  A  HISTORY  OF  THE  AMERICAN  BAR 

and  that  "all  courts  shall  judge  of  the  right  pleading  and 
of  the  inconsistency  of  the  said  laws  with  the  good  of  the 
Province  according  to  the  best  of  their  judgment." 

In  1732,  the  controversy  between  the  colonists  and  the 
Proprietor  was  settled  by  an  act  providing  that  "when  the 
acts  and  usages  of  the  Province  are  silent,  the  rule  of  judi- 
cature is  to  be  according  to  the  law  and  statutes  and 
reasonable  customs  of  England,  as  used  and  practised  within 
the  Province."  It  is  to  be  noticed,  however,  that  even 
here  the  colonists  claimed  their  right  to  adopt  the  Common 
Law,  or  not,  as  they  saw  fit.^  From  the  beginning  of  its 
history,  Maryland  had  a  more  complete  system  of  courts 
than  any  other  Colony,  based  largely  on  the  English 
judiciary  —  Courts  of  Pupowder  (Pypowdry)  or  Market 
Courts,  Courts  Baron  and  Leet  incident  to  the  landed 
estates.  County  Courts,  the  Provincial  Court,  and  a  Court 
of  Appeal.  Although  in  1638  the  General  Assembly  tried 
many  cases,  the  Provincial  Court  gradually  absorbed  all 
superior  jurisdiction.  It  consisted  of  the  Governor  and 
his  Council,  appointed  by  the  Proprietor  or  his  deputy,  and 
therefore  "dependent  on  the  mere  breath  of  his  nostrils."  ^ 
Its  members  also  composed  the  Upper  House  of  the  General 
Assembly.  In  1692,  when  Maryland  became  a  Royal, 
instead  of  a  proprietary  Province,  a  Pro\dncial  Court  was 
organized  apart  from  the  Council,  and  the  Governor 
ceased  to  be  Chief  Justice.  The  Governor  and  Council 
were  constituted,  however,  the  Court  of  Appeals. 

Few  lawyers  of  learning  or  distinction  were  to  be  found 
among  the  judges  of  these  courts;  and  as  late  as  1767,  the 
eminent  leader   of   the  Bar,  Daniel   Dulany,  made  this 

1  See  especially  State  v.  Buchanan,  5  H.  &  J.  356  (1821). 
*  See  Calvert  v.  Eden,  2  Harris  &  McHenry  345,  360. 
For  a  history  of  the  courts  in  Maryland,  see  dissenting  opinion  of  Taney, 
C.  J.,  in  Kendall  v.  U.  S.,  12  Peters,  p.  631. 


THE  COLONIAL  BAR  OF  VIRGINL\  AND  MARYLAND    51 

comment  on  the  courts  in  a  formal  opinion  rendered  by 
him: 

"On  perusing  the  record,  I  am  strongly  of  the  opinion 
that  the  judgment  of  the  Provincial  Court  ought  to  be 
reversed;  but  what  may  be  the  opinion  of  the  Court  of 
Appeals  I  should  be  more  confident  in  predicting,  if  the 
judges  were  lawyers  by  profession,  than  I  am  on  the  con- 
sideration that  they  are  not."  ^ 

The  records  of  the  proceedings  of  the  Provincial  Court  are 
extant  in  the  first  two  volumes  of  Maryland  Archives  up 
to  1657,  and  in  cases  to  be  found  in  volumes  one  and  four 
of  Harris  and  McHenry's  Reports,  covering  cases  from  1658 
to  1776. 

The  early  recognition  of  the  Common  Law  and  the  high 
organization  of  the  judicial  system  were  imdoubtedly  the 
chief  factors  in  developing  a  trained  Bar  in  Maryland  at  an 
earher  date  than  in  any  other  Colony.  For  in  no  Colony 
did  attorneys  appear  in  such  numbers,  or  of  so  high  a 
character,  or  under  such  early  statutory  recognition. 

The  first  lawyer  of  record,  and  "father  of  the  Maryland 
Bar,"  was  John  Lewger,  Attorney  for  the  Lord  Proprietary, 
who  landed  in  1637,  three  years  after  the  settlement  of  the 
Province,  and  whose  name  appears  as  counsel  in  a  case 
that  same  year.  The  next  attorney  of  record  was  James 
Cauther,  in  1637,  who  appeared  in  a  confession  of  debt. 
Like  many  "attorneys"  of  this  time,  he  was  also  a  planter. 
In  1638,  Cyprian  Thoroughgood  appeared  as  attorney  in 
a  suit  for  damages  for  refusal  to  furnish  lumber  under  a 
contract.  Cuthbert  Fenwick  (termed  in  the  WTit  for  the 
General  Assembly  in  1640,  "Gent.  Attorney")  appeared, 
in  1644,  to  collect  a  claim  for  tobacco  for  a  Virginian  client; 

1  See  Opinion  of  Daniel  Dulany  on  the  judgment  of  the  Provincial  Court 
in  West  v.  Slegar,  i  H.  &  McH.  247  (1767). 


S2  A  fflSTORY  OF  THE  AMERICAN  BAR 

and  between  the  years  1634  and  1660,  the  names  of  many 
other  attorneys  appear  of  record.^ 

At  this  time,  there  appeared  the  first  American  woman 
lawyer,  Mrs.  Margaret  Brent,  who  not  only  pleaded  in 
court,  but  even  insisted  on  her  right  to  take  part  in  the 
General  Assembly,  as  appears  from  the  following  quaint 
record  of  that  body: 

"Jan.  21,  1647-8  —  came  Mrs.  Margaret  Brent  in  the 
house  for  herselfe  and  voyce  also,  for  that  att  the  last  court 
3rd  Jan.  it  was  ordered  that  Mrs.  Brent  was  to  be  looked 
uppon  and  received  as  his  Lps.  [Lordship's]  attorney.  The 
Gov'r  denyed  that  the  sd.  Mrs.  Brent  should  have  any  vote 
in  the  howse.  And  the  sd.  Mrs.  Brent  protested  agst  all 
proceedings  in  this  first  Assembly  unless  shee  may  be  pst 
and  have  vote  as  aforesaid." 

In  1659,  the  presence  of  attorneys  was  recognized  by  a 
statute  which  provided  that  "the  attorneys  on  both  sides 
speak  distinctly  to  one  error  first  before  they  proceed  to  the 
next,  without  disturbing  each  other."  By  the  year  1669, 
the  attorneys  had  so  increased  as  to  occasion  a  report  by  a 
Committee  of  the  Lower  House  of  the  Assembly  "that  the 
privileged  attorneys  are  one  of  the  great  grievances  of  the 
country."  Charges  of  impeachment  were  preferred  against 
one  John  Morecraft  for  having  taken  fees  on  both  sides 
of  a  case,  and  also  for  "  that  he  is  retayned  as  attorney  for 
some,  with  unreasonable  fees,  for  a  whole  year's  space, 
so  that  by  that  means  it  causes  several  suits  to  the  utter 
ruin  of  people."  The  Upper  House,  however,  dismissed 
the  charges,  expressing  its  wonder  that  "attorneys  of 
ability  and  sworn  to  be  diligent  and  faithful  in  their  places 
and  offices"  should  be  "called  a  grievance,  nay  the  grand 
grievance  of  the  country." 

1  Thomas  Gerrard,  Thomas  Notley  Gater  Governor),  Peter  Draper, 
Thomas  Mathews,  William  Harditch,  John  Weyville,  George  Manners  and, 
most  distinguished  of  all,  Giles  Brent  (later  Attorney-General). 


THE  COLONIAL  BAR  OF  VIRGINIA  AND  MARYLAND    53 

In  167 1,  an  act  was  passed  forbidding  sheriffs,  com- 
missioners, clerks,  and  deputy  sheriffs,  and  officers  of  the 
court,  from  practising  as  attorneys  in  their  respective 
courts.  In  1674,  an  act  was  passed  declaring  "  the  abuse 
of  several  persons  in  this  Province  practising  as  Attorneys, 
Councellors  and  Solicitors  at  Law  by  taking  and  exacting 
excessive  fees  of  their  Clyents  whereby  many  of  the  good 
people  of  this  Province  are  much  burthened  and  their  causes 
much  delayed,  and  by  the  great  number  of  attorneys,  where- 
by many  unnecessary  and  troublesome  suits  are  raysed 
and  fomented;"  and  providing  that  thereafter  only  a 
*' certain  number  of  honest  and  able  attorneys  be  admitted, 
nominated  and  sworn"  by  the  Captain-General  to  be 
attorneys  and  counsellors,  and  all  others  to  be  forbidden 
to  practise.  Fees  were  regulated,  and  heavy  fines  and  the 
penalty  of  disbarment  were  imposed  for  demanding  or 
receiving  more  than  the  legal  fees.  County  Courts 
attorneys  should  practise  only  after  appointment  by  the 
Commissioners  or  Justices  of  the  County  Courts.  Another 
act  regulating  the  fees  and  conduct  of  attorneys  was  passed 
in  1 7 14;  and  in  17 15  a  comprehensive  act  was  passed  ''for 
rectifying  the  ill  practices  of  attorneys  of  this  province  and 
ascertaining  fees,"  providing  that  no  person  should  practise 
law  without  being  admitted  thereto  by  the  justices  of  the 
court,  establishing  rates  of  fees,  and  providing  against 
neglect  of  duty.  At  the  same  time,  court  rules  required 
gowns  to  be  worn  by  both  lawyers  and  judges.  In  1721 
and  1722,  laws  were  passed  to  punish  attorneys  who  by 
neglect  of  their  duties  caused  loss  to  their  clients. 

The  natural  jealousy  against  lawyers,  entertained  by  all 
agricultural  communities,  culminated  in  1725,  in  an  act 
regulating  lawyers'  fees  with  extreme  strictness,  and  giving 
an  option  to  the  planter  to  pay  in  tobacco  or  in  currency  at 
a  fixed  rate.    Against  this  act,  a  petition  was  presented  in 


54  A  HISTORY  OF  THE  AMERICAN  BAR 

the  Upper  House  by  Daniel  Dulany,  Senior,  Thomas  Bord- 
ley,  Joshua  George  and  Michael  Howard,  "late  practitioners 
of  the  law,"  alleging  the  act  to  be  destructive  of  their 
privileges  as  British  subjects. 

This  petition  is  of  vital  interest  as  being  one  of  the  first 
of  the  series  of  struggles  by  the  colonists  to  maintain  their 
rights  under  the  English  laws  and  constitution;  it  was 
followed  by  the  publication  by  Dulany,  in  1728,  at  Annap- 
olis, of  his  famous  pamphlet,  The  Right  of  the  Inhabitants 
of  Maryland  to  the  Benefit  of  the  English  Laws. 

In  1729,  when  the  act  was  extended  for  three  years,  the 
lawyers  petitioned  the  Proprietor  in  London  against  it, 
employing  John  Sharpe,  a  barrister  of  Lincoln's  Inn,  as 
their  counsel.  The  Proprietor  gave  his  dissent,  on  the 
ground  that  such  a  law  "was  not  agreeable  to  any  known 
law  here,"  and  to  his  dissent  was  appended  the  opinion  of 
the  then  Attorney- General  of  Great  Britain,  PhiHp  Yorke 
(later  the  great  Lord  Chancellor  Hardwicke). 

Of  the  Bar  of  the  early  Eighteenth  Century,  this  Daniel 
Dulany,  the  elder,  stood  at  the  head.  He  was  born  about 
1680,  educated  at  the  University  of  Dublin,  admitted  to 
the  Bar  of  the  Provincial  Court  in  17 10,  barrister  of  Gray's 
Inn  in  17 16,  later  Attorney-General  of  the  Province. 

Others  of  prominence  were  Charles  Carroll,  born  in  1660, 
educated  at  the  University  of  Douai  in  France  and  in  the 
Inner  Temple  in  London,  who  came  to  Maryland  in  1688, 
as  Attorney- General  vigorously  resisted  the  attempt  to 
overthrow  Lord  Baltimore's  Government,  was  arrested  for 
high  misdemeanor  by  the  Royal  Governor,  and  died  in 
1720;  Thomas  Bordley;  Robert  Ridgely;  Col.  Henry 
Jowles,  a  barrister,  and  Chancellor  of  the  Province  in 
1697;  Griffith  Jones  and  Stephen  Bordley.^ 

*  In  1692,  it  is  recorded  that  on  the  assembling  of  the  Provincial  Court 
after  the  Protestant  Revolution,  George  Plates,  Griffith  Jones,  William 


THE  COLONIAL  BAR  OF  VIRGINL\  AND  MARYLAND 


J3 


By  the  year  1765,  conditions  had  arisen  in  Maryland 
which  had  produced  a  Bar  of  great  ability  and  of  trained 
men  educated  in  the  law.  The  increase  of  wealthy  landed 
proprietors  had  given  rise  to  extremely  complicated  land 
laws,  with  a  highly  technical  mass  of  court  decisions.  The 
broad  development  of  commerce  in  the  Province  gave  rise 
to  much  contract  and  maritime  litigation.  In  no  Province 
was  there  greater  excitement  over  the  Stamp  Act  or  greater 
struggle  against  the  assertion  of  arbitrary  legislative  powers 
by  the  Royal  Governors.  To  deal  with  these  conditions, 
the  pre-Revolutionary  Bar  was  brilliantly  fitted.  At  its 
head  was  Daniel  Dulany,  the  younger,  who  was  born  in 
1 72 1,  educated  in  the  Temple,  and  admitted  to  the  Bar  in 
1747.  So  extended  became  his  reputation  that  he  was 
consulted  on  questions  of  jurisprudence  by  eminent  lawyers 
in  England;  and  cases  were  frequently  withdrawn  from 
Maryland  courts,  and  on  one  occasion  even  from  the 
Chancellor  of  England,  to  submit  to  him  and  abide  by  his 
award.  His  opinions,  hke  those  of  his  father,  were  deemed 
of  such  weight  that  many  of  them  were  included  with 
reports  of  decided  cases,  when  law  reports  were  first  printed 
in  Maryland,  in  1809.^ 

At  the  time  of  the  Stamp  Act  agitation,  he  was  hailed 
as  the  William  Pitt  of  Maryland,  because  of  his  remarkable 
pamphlet  on  Considerations  on  the  Propriety  of  imposing 

Dent,  Samuel  Watkins  and  Philip  Clark  took  the  new  test  oath,  and  on 
motion  the  court  limited  the  number  of  attorneys  to  be  allowed  to  practise. 
'  Samuel  Tyler  in  his  Memoirs  of  Roger  Brooke  Taney  (1S72)  says:  "The 
opinions  of  Daniel  Dulany  had  almost  as  much  weight  in  court  in  Marj'- 
land,  and  hardly  less  with  the  court  lawyers  of  England,  than  the  opinions 
of  the  great  Roman  jurists  that  were  made  authority  by  edict  of  the  Em- 
peror, had  in  Roman  court.  This  was  due,  on  some  degree,  to  the  fact 
that  there  were  no  reports  of  ^Marj'land  decisions  until  1809.  .  .  .  The  high 
reputation  of  this  great  lawyer  stimulated  the  ambition  of  the  Mary- 
land Bar,  while  his  opinions  were  models  of  legal  discussion  for  their 
imitation." 


S6  A  fflSTORY  OF  THE  AMERICAN  BAR 

taxes  on  tlie  British  Colonies  for  the  purpose  of  raising  a 
revenue  by  Act  of  Parliament,  published  at  Annapolis 
in  1765. 

Contemporary  with  Dulany  were  Thomas  Johnson,  who, 
born  in  1732,  became  Chief  Justice  of  the  General  Court 
of  the  State  in  1790  and  Judge  of  the  United  States  Supreme 
Court  in  1791;  Charles  Carroll,  who,  born  in  1737,  studied 
in  the  Temple  in  London  in  1757,  returned  to  Maryland  in 
1765,  and  was  one  of  the  Signers  of  the  Declaration  of 
Independence;  William  Paca,  born  in  1740,  a  graduate  of 
the  College  of  Philadelphia  in  1759  and  of  the  Middle 
Temple  in  London,  was  Chief  Justice  of  the  State  in  1778, 
Governor  in  1782,  and  Judge  of  the  United  States  District 
Court  in  1789,  also  one  of  the  Signers;  Samuel  Chase,  the 
"torch  that  lighted  up  the  Revolutionary  flame"  in  Mary- 
land, born  in  1741,  Signer  of  the  Declaration,  Chief  Justice 
of  the  State  in  1791,  Judge  of  the  United  States  Supreme 
Court  in  1796;  Thomas  Stone,  born  in  1743,  one  of  the 
Signers;  Charles  Gordon;  John  Hammond;  and  George 
Chalmers,  a  Scotch  lawyer,  who  came  to  Baltimore  in 
1763  and  returned  to  England  in  1775,  a  noted  writer,  his 
Opinions  of  Eminent  Lawyers  on  various  points  of  English 
jurisprudence  concerning  the  Colonies,  Fisheries  and  Com- 
merce of  Great  Britain  being  of  especial  interest  to  students 
of  Colonial  law. 

NOTE 

To  Virginia  Text 
For  authorities  in  general  see: 

History  of  the  Colony  and  Ancient  Dominion  of  Virginia,  by 

Charles  Campbell  (i860). 
History  of  Virginia,  by  R.  R.  Howison  (1846). 
History    of    Virginia    Codification,  —  Virginia    Law    Register, 

Vol.  XI. 


THE  COLONIAL  BAR  OF  VIRGINL\  AND  MARYLAND    57 

The  American  Colonies  in  the  Seventeenth  Century,  by  Herbert 
L.  Osgood  (1904). 

Hildreth's  History  of  the  United  States,  Vols.  I  and  II. 

Court  and  Bar  of  Colonial  Virginia,  —  Green  Bag,  Vol.  X. 

Old  Virginia,  by  John  Fiske,  Vol.  II  (1897). 

Great  American  Lawyers,  Vols.  I-III(i9o8). 

Lawyers   in    Virginia    between   1704  atid    1737,  —  Virg.   Law 
Reg.,  Vol.  I  (1877). 

Virginia  Historical  Register,  Vol.  I,  p.  119  et  seq. 

Speech  of  Charles  M.  Blackford,  in  Proceedings  of  Virginia  Bar 
Association,  Vol.  VII  (1898). 

Glance  at  Our  Colonial  Bar,  —  Green  Bag,  Vol.  XIII. 

TJwmas  Jeferson  as  a  Lawyer,  —  Green  Bag,  Vol.  XV. 

Patrick  Henry  as  a  Lawyer,  —  Green  Bag,  Vol.  XVI. 

Virginia  Lawyers,  —  Green  Bag,  Vol.  X,  Nos.  i,  2,  3. 

Sketches  of  the  Life  and  Character  of  Patrick  Henry,  by  Wil- 
liam Wirt  (1817). 

Edmund  Randolph,  by  Moncure  D.  Conway  (1888). 

John  Randolph  of  Roatioke,  by  Hugh  A.  Garland  (1851). 

Henry  Clay  as  a  Lawyer,  — Law  Reporter,  Vol.  XV  (1852). 

Local    Institutions    of    Virginia,  —  Johns   Hopkins    University 
Studies  in  Historical  and  Political  Science,  3d  series  (1885). 

Our   Judicial   System,    by   Benjamin    Watkins   Leigh.    Proc. 
Virginia  Bar  Association,  Vol.  I  (1889). 

County  Courts  in  Virginia,  —  Proc.  Virginia  Bar  Association, 
Vol.  VI  (1894). 

The  General  Court  of  Virginia,  —  Proc.  Virginia  Bar  Associa- 
tion, Vol.  VII  (1895). 

Life  of  Chancellor  Wythe,  in  Wythe's  Cases  in  Chancery  (1852 
edition). 

Letters  and  Times  of  the  Tylers,  by  Lyon  G.  Tyler  (1S84). 

Discourse   on  the  Life  and  Character  of  Hon.  Littleton  Waller 
Tazewell,  by  Hugh  Blair  Grigsby  (i860). 

Preface   to    Virginia    Statutes,    by   William   Waller    Hening 
(1809). 

Virginia  Colonial  Decisions,  Vol.  I,  edited  by  R.  T.  Barton 

(1909). 
Virginia  Magazine,  Vol.  I,  260. 


58  A  HISTORY  OF  THE  AMERICAN  BAR 

To  Maryland  Text 

For  authorities  in  general  see: 

Glance  at  our  Colonial  Bar,  —  Green  Bag,  Vol.  XI. 

Adoption  of  English  Law  in  Maryland,  —  Yale  Law  Journal,  Vol. 
VIII. 

Bar  of  Early  Maryland,  —  Green  Bag,  Vol.  XII. 

Studies  in  the  Civil,  Social  and  Ecclesiastical  History  of  Early 
Maryland,  by  Theodore  C.  Gambrall  (1893). 

Historical  View  of  the  Government  of  Maryland,  by  John  Van 
L.  McMahon  (1831). 

Maryland  Jurisprudence,  —  American  Jurist,  Vol.  XV. 

Maryland  Archives,  Proceedings  and  Acts  of  the  General  As- 
sembly. 

Some  Characteristics  of  the  Provincial  Judiciary,  by  Charles  E. 
Phelps,  Maryland  Bar  Association  Report,  Vol.  II  (1897). 

The  Founders  of  the  Bar  of  Maryland,  by  Elihu  S.  Riley,  Mary- 
land Bar  Ass.  Report,  Vol.  II  (1897). 

The  Courts  and  Bench  of  Colonial  Maryland,  —  Maryland  Bar 
Ass.  Report,  Vol.  Ill  (1898). 

Development  of  the  Legal  Profession,  1669-1715,  by  Elihu  S. 
Riley,  Maryland  Bar  Ass.  Report,  Vol.  IV  (1899). 

Economics  and  Politics  in  Maryland,  17  20-1 7 50,  and  Public 
Service  of  Daniel  Dulany  the  Elder,  by  St.  George  Leakin 
Sioussat,  in  Johns  Hopkins  Univ.  Studies  in  Historical  and 
Political  Science  Series,  Vol.  XXI  (1903). 

Beginnings  of  Maryland,  by  Bernard  A.  Steiner,  in  Johns  Hop- 
kins Univ.  Studies  in  Historical  aftd  Political  Science  Series, 
Vol.  XXI  (1903). 

The  English  Statutes  in  Maryland,  in  Johns  Hopkins  Univ. 
Studies  in  Historical  and  Political  Science  Series,  Vol.  XXI 

(1903)-  .        „     ,    . 

Life  of  George  Chalmers,  in  Loyalists  of  American  Revolution, 

by  Lorenzo  Sabine  (1864). 

Life  of  Charles  Carroll  of  Carrollton,  by  Kate  Mason  Rowland 

(1898). 


CHAPTER  III 

COLONIAL  MASSACHUSETTS  BAR 

The  history  of  the  legal  profession  in  Massachusetts 
deserves,  perhaps,  a  fuller  statement  than  that  of  any  other 
Colony,  for  two  reasons  —  first,  because  of  the  richness  of 
materials  at  hand  in  the  shape  of  documents,  records,  con- 
temporary letters,  diaries  and  histories;  and  second,  be- 
cause of  the  fact  that  this  Colony  developed  a  larger  and 
better  organized  Bar  than  any  other  in  pre-Revolutionary 
days.  Moreover,  the  extreme  spirit  of  independence  in  its 
colonists  on  the  one  hand,  the  preponderating  influence  of 
the  clergy  among  them  on  the  other,  and  the  existence 
within  its  borders  of  the  largest  college  in  the  coimtry,  had 
an  efi'ect  upon  the  course  of  its  law  and  the  growth  of  its 
Bar  that  differentiated  its  history  in  some  respects  from 
that  of  the  others.  Nevertheless,  even  Massachusetts,  like 
the  other  Colonies,  started  its  career  lawyerless. 

Of  the  sixty-five  men  who  landed  at  Plymouth  in  1620 
and  founded  the  Plymouth  Colony,  no  one  was  a  lawyer; 
and  among  the  founders  of  the  Massachusetts  Bay  Colony 
(1628-1634)  there  was  not  an  actual  practising  lawyer. 
Although  John  Winthrop,  its  Governor,  and  Emanuel 
Downing  had  been  admitted  to  the  Inner  Temple  in  Lon- 
don, and  Richard  BelUngham,  Simon  Bradstreet,  Herbert 
Pelham,  John  Humphreys,  and  Thomas  Dudley  and  a  few 
others  had  doubtless  been  students  of  law  or  univer- 
sity men,  they  were  not  engaged  in  the  practise  of  the 
profession.^ 

*  Proc.  Mass.  Hist.  Soc.  (1878),  p.  3. 


6o  A  HISTORY  OF  THE  AMERICAN  BAR 

The  early  provisions  for  a  judiciary  were  also  elementary. 
At  the  foundation  of  the  Plymouth  Colony  the  whole  com- 
munity acted  as  the  Court.  Thus,  in  the  first  recorded 
offence  agamst  the  law,  in  March,  162 1,  "John  Billington  is 
convented  before  the  whole  company  for  the  contempt  of 
the  captain's  lawful  commands  with  opprobrious  speeches; 
for  which  he  is  adjudged  to  have  his  neck  and  heels  tied 
together."  The  second  offence  was,  as  Governor  Bradford 
informs  us,  the  first  duel  fought  in  New  England  upon  a 
challenge  at  single  combat  with  sword  and  dagger,  between 
Edward  Doty  and  Edward  Lester,  servants  of  Mr.  Hopkins. 
"They  are  adjudged  by  the  whole  company  to  have  their 
heads  and  feet  tied  together  and  so  to  lie  for  twenty-four 
hours,  without  meat  or  drink." 

It  was  not  until  1623  that  there  is  record  of  the  passage 
of  any  order  concerning  judicial  administration;  in  that  year 
trial  by  jury  was  introduced.  In  1632,  the  records  show 
that  there  were  sessions  of  the  General  Court,  a  body  which 
acted  both  as  Legislature  and  Court,  and  of  the  Court  of 
Magistrates  or  Assistants,  presided  over  by  the  Governor. 
In  1685,  County  Courts  were  established,  and  the  Court  of 
Assistants  exercised  an  appeal  and  admiralty  jurisdiction. 

The  law  administered  by  the  courts  was  the  Colony's 
own  law,  and  not  the  Common  Law,  except  so  far  as  it  was 
expressly  adopted.  Thus,  in  1636,  the  Colony  recognized 
among  what  it  termed  its  "General  Fundamentals"  "the 
good  and  equitable  laws  of  our  nation  suitable  for  us  in 
matters  whichare  of  civil  nature  (as  by  the  Court  has  been 
accustomed),  wherein  we  have  no  particular  law  of  our  own." 
And,  in  1671,  the  General  Laws  and  Liberties  of  New  Ply- 
mouth Colony  provided  that  "no  person  shall  be  en- 
damaged in  respect  of  Life,  Limb,  Liberty,  Good  name  or 
Estate  under  colour  of  Law  or  countenance  of  authority, 
but  by  virtue  or  equity  of  some  express  Law  of  the  General 


COLONIAL  MASSACHUSETTS  BAR  6i 

Court  of  this  Colony,  the  known  law  of  God,  or  the  good 
and  equitable  laws  of  our  Nation,  suitable  for  us." 

In  Massachusetts  Bay  Colony,  the  Governor,  Deputy 
Governor  and  eighteen  Assistants  constituted  the  Court,  as 
well  as  the  Legislature,  from  1629  to  1635,  They  acted 
both  as  judges,  magistrates  and  legislators.^  At  their  first 
meeting  at  Charlestown,  in  August,  1630,  as  a  "Court  of 
Assistants,"  they  established  rules  of  proceedings  in  civil 
matters  and  powers  for  punishing  criminals.  In  1634,  the 
General  Court,  consisting  of  a  House  of  Deputies  or  Repre- 
sentatives of  the  "free  men"  of  the  Colony,  and  sitting  with 
the  Governor  and  Assistants,  was  established  by  a  law 
declaring  that: 

"The  General  Court  ...  is  the  chief  civil  power  of 
this  Commonwealth  .  .  .  and  may  act  in  all  affairs  of 
this  Commonwealth  according  to  such  power,  both  in 
matters  of  counsel,  making  of  lawes  and  matters  of  judica- 
ture by  impeaching  and  sentencing  any  person  or  persons 
according  to  law  and  by  receiving  and  hearing  any  com- 
plaints orderly  presented  against  any  person  or  court. 

The  General  Court  from  1635  to  1684,  therefore,  acted 
both  as  a  Legislature  and  as  a  judicial  Court  of  Appeals; 
but  the  Court  of  Assistants  sat  also  as  a  separate  court,  hold- 
ing four  sessions  yearly,  known  as  the  Quarter  Courts. 

In  1638,  the  town  magistrates  were  given  jurisdiction  to 
hear  petty  causes;  and  in  1639,  County  Courts  were  estab- 
lished, consisting  of  five  magistrates  and  associates  chosen 
by  the  General  Court. 

In  1642,  the  first  attempt  was  made  to  distinguish  by  law 

^  The  records  of  the  proceedings  of  the  Court  of  Assistants  are  found 
in  the  same  book  and  intermixed  with  the  records  of  the  proceedings  of  the 
General  Court.  See  Preface  by  John  Noble  to  Records  of  the  Courts  of  Assist- 
ants (1901). 

Early  Court  Files  of  Suffolk  County,  by  John  Noble,  —  PuhUcatlons  of 
the  Colonial  Society  of  Massachusetts,  Vol.  Ill  (1895-1897). 


62  A  HISTORY  OF  THE  AMERICAN  BAR 

between  the  sphere  of  the  General  Court  and  the  Court  of 
Assistants  sitting  as  a  separate  judicial  body;  and  it  was 
provided  that  owing  to  the  amount  of  time  consumed  in 
hearing  civil  cases,  all  such  cases  should  be  first  heard  in  the 
lower  courts,  and  only  when  relief  could  not  be  obtained 
there,  should  the  General  Court  be  appealed  to.^  In  1660, 
the  Court  of  Assistants  became  an  absolutely  separate 
judicial  body,  as  a  Superior  Court,  with  powers  and  terms 
of  sitting  prescribed  in  detail  by  statute. 

In  modes  of  procedure,  the  magistrates  and  the  courts 
followed  somewhat  the  general  proceedings  of  EngUsh  law; 
but  in  their  decisions  they  were  practically  uncontrolled 
by  any  system  of  law.  They  were  inclined  to  believe,  as 
Winthrop  said,  that  "such  laws  would  be  fittest  for  us 
which  should  arise  pro  re  nata  upon  occasions." 

This  was  quite  in  accordance  with  the  desires  of  the 
clergy,  who  then  formed  the  prevailing  power  in  the  Colo- 
nies; for,  as  Thomas  Lechford  said  in  1642 1^ 

"The  ministers  advise  in  making  of  laws,  especially 
ecclesiasticall,  and  are  present  in  courts  and  advise  in  some 
special  causes  annual  and  in  framing  of  Fundamental  Lawes. 
Matters  of  debt,  trespass  and  upon  the  case,  equity,  yea 
and  of  heresy  also  are  tryed  by  a  jury." 

Another  contemporary  wrote:  ^ 

"The  preachers  by  their  power  with  the  people  made  all 
the  magistrates,  and  kept  them  so  entirely  under  obedience 
that  they  durst  not  act  without  them.     Soe  that  whenever 

1  For  an  early  case  appealed  from  the  Court  of  Assistants  to  the  General 
Court  in  1648,  see  Salionstall  6*  D.  Yale  v.  Abraham  Shurt.  —  Col.  Rec,  Vol. 
II,  p.  231. 

2  Plaine  Dealing  or  News  from  Neva  England,  by  Thomas   Lechford 

(1642). 

3  An  Account  oj  the  Colonies  in  Lambeth  MSS.,  Perry's  Historical  Col- 
lection, Vol.  Ill,  48. 


COLONIAL  MASSACHUSETTS  BAR  63 

anything  strange  or  unusual  was  brought  before  them,  they 
would  not  determine  the  matter  without  consulting  their 
preachers." 

But  while  so  much  power  lay  in  the  discretion  of  the 
magistrates,  the  people  felt  themselves  unsafe.  As  John 
Winthrop  wrote  :^ 

"The  deputies  having  conceived  great  danger  to  our 
State  in  regard  that  our  magistrates  for  want  of  positive  law 
in  many  cases  might  proceed  according  to  their  discretion, 
it  was  agreed  that  some  men  should  be  appointed  to  frame 
a  body  of  grounds  of  law,  in  resemblance  to  a  IVIagna 
Charta,  which  being  allowed  by  some  of  the  ministers  and 
the  General  Court,  should  be  received  for  fundamental 
laws." 

Accordingly,  "At  the  General  Court,  May  25,  1636,  it 
was  ordered  that  the  Governor  (Henry  Vane),  the  Deputy 
Governor  (John)  Cotton,  Mr.  (Hugh)  Peters  and  Mr. 
Shepherd  are  entreated  to  make  a  draught  of  laws  agreeable 
to  the  word  of  God  which  may  be  the  Fundamentals  of  this 
Commonwealth  and  to  present  the  same  to  the  next  Gen- 
eral Court." 

In  the  meantime,  the  magistrates  were  ordered  to  hear  and 
determine  causes  according  to  law;  but  where  there  was  no 
law,  "then  as  near  the  Law  of  God  as  they  can."  It  was 
natural  and  characteristic  of  the  times,  that  this  matter  of 
framing  a  code  should  have  been  entrusted  by  the  magis- 
trates to  two  clergymen,  each  of  whom  framed  a  separate 
model.  Rev.  John  Cotton,  a  Fellow  of  Emmanuel  College, 
Cambridge,  England,  prepared  a  code  called  by  Governor 
Winthrop  "A  copy  of  Moses,  his  judicials,  compiled  in  an 
exact  method."  ^  It  was  founded  on  the  Scripture  through- 
out, with  references  thereto,  and  established  a  pure  theoc- 

*  History  of  New  England,  by  John  Winthrop,  Vol.  I,  p.  194. 

*  See  Cotton's    Moses,  His   Judid<ils,  in    Mass.  Hist.  Soc.  Proc.  (2d 
Series),  Vol.  XVI  (1902). 


3 


64  A  HISTORY  OF  THE  AMERICAN  BAR 

racy.  The  other  was  compiled  by  Rev.  Nathaniel  Ward, 
a  minister  at  Ipswich,  and  the  author  of  a  curious  book 
entitled  Tlie  Simple  Cobbler  of  Agawam.  He  had  been 
a  barrister  of  Lincoln's  Inn,  in  England,  in  1615,^  had 
entered  the  ministry  in  1618  and  been  suspended  for  puritan- 
ism  in  1633  by  Archbishop  Laud.  This  great  work  of  his, 
called  The  Body  oj  Liberties,  consisting  of  one  hundred 
fundamental  laws,  is  entitled  to  the  fame  of  being  the  first 
American  law  book.^  It  was  accepted  by  the  people  in 
1 64 1,  as  better  suited  to  the  times  than  Cotton's  Code 
Still,  even  m  Ward's  Code  it  is  to  be  noted  that  m  cases 
not  therein  provided  for  it  was  the  "word  of  God"  which 
was  to  guide  the  courts,  and  not  the  EngHsh  Common  Law. 
Thus  Liberty  Nmnber  I  provided; 

"i.  No  man's  Hfe  shall  be  taken  away,  no  man's  honour 
or  good  name  shall  be  stayned,  no  man's  person  shall  be 
arrested,  restrayned,  banished,  dismembered,  nor  any  wayes 
punished,  no  man  shall  be  deprived  of  his  wife  or  children, 
no  man's  goods  or  estates  shall  be  taken  away  from  him  nor 
any  way  indamaged  under  colour  of  law  or  Countenance  of 
Authority,  unless  it  be  by  virtue  or  equitie  of  some  expresse 
law  of  the  Country  warranting  the  same  stabHshed  by  a 
generall  court  and  sufficiently  pubfished,  or  in  case  of  the 
defect  of  a  law  in  any  particular  case  by  the  word  of  God. 
And  in  Capitall  cases,  or  in  cases  concerning  dismembering 
or  banishment,  according  to  that  word  to  be  judged  by  the 
Generall  Court." 

Many  of  their  enactments  at  this  time  differed  greatly 

1  See  Gray,  C.  G.,  in  Jackson  v.  Phillips,  14  Allen  (Mass.),  p.  599  (1867). 

2  No  copy  of  this  was  discovered  until  1843,  when  Mr.  Francis  C.  Gray 
found  it  in  the  Boston  Athenaeum.  See  Mass.  Hist.  Soc.  Coll.,  Vol.  VIII 
(3d  Series),  p.  196. 

See  also  Colonial  Laws  of  Massachusetts,  by  W.  H.  Whitmore  (1890). 

*  In  1 64 1  there  was  published  in  London  An  Abstract  of  the  Lawes  of 
New  England  As  they  are  now  Established,  which  is  probably  Cotton's  Code. 
See  Mass.  Hist.  Soc.  Proc.  (2d  Series),  Vol.  XVI  (1902). 


COLONIAL  MASSACHUSETTS  BAR  65 

from  the  English  Common  Law  of  the  day,  as,  for  instance, 
that  there  should  be  no  monopolies  "except  such  as  were 
profitable  to  the  country,  and  those  for  a  short  time  only;  " 
that  all  deeds  of  conveyance,  whether  absolute  or  conditional, 
should  be  recorded;  and  that  instead  of  the  right  of  primo- 
geniture, the  elder  son  should  have  a  double  portion  of  his 
parent's  real  and  personal  estate. 

This  Body  of  Liberties  was  probably  not  printed  in  full  or 
published  at  the  time;  but  in  1649  a  revision  of  all  the  laws 
then  in  existence  was  published,  known  as  the  Laws  and 
Liberties,  and  a  similar  re\dsion  was  made  in  1660  (the  ear- 
liest of  which  any  copy  is  extant),  and  another  revision  was 
made  in  1672.^ 

In  1644,  the  General  Court  requested  the  opinion  of  the 
elders  as  to  whether  the  magistrates  should  be  guided  by 
the  word  of  God  in  cases  not  covered  by  statute,  and  the 
elders  replied  in  the  following  terms :  ^ 

"We  do  not  find  that  by  the  patent  they  are  expressly 
directed  to  proceed  according  to  the  word  of  God:  but  we 
understand  that  by  a  law  or  liberty  of  the  country,  they 
may  act  in  cases  wherein  as  yet  there  is  no  express  law,  so 
that  in  such  acts  they  proceed  according  to  the  word  of 
God." 

In  1646  the  General  Court  itself  stated:' 

1  See  The  Body  of  Liberties  of  1641,  by  H.  H.  Edes,  Publicaiions  of  the 
Massackuselis  Colonial  Society,  Vol.  VII  (1900-1902). 

2  Col.  Rec.,  Vol.  II,  p.  93. 

3  See  Winthrop's  History  of  New  England,  Vol.  II.  The  foundation  of  the 
law  upon  the  Word  of  God  was  even  at  this  time  a  familiar  doctrine  even  in 
Common  Law  England. 

Thus  as  late  as  1650,  Lord  Chief  Justice  Keble  said  in  5  How.  St.  Trials 
that  the  law  of  England  was  "the  ver>'  consequence  of  the  very  decalogue 
itself  —  as  really  and  truly  the  law  of  God  as  any  Scriptural  phrase.  .  .  . 
Whatever  was  not  consonant  to  the  law  of  God  in  Scripture  .  .  .  was  not 
the  law  of  England  but  the  error  of  the  party  which  did  pronounce  it." 

So  John  Milton  in  his  Defence  of  the  People  of  England  in  1651  appealed 


66  A  HISTORY  OF  THE  AMERICAN  BAR 

"The  laws  of  the  colony  are  not  diametrically  opposed  to 
the  laws  of  England  for  then  they  must  be  contrary  to  the 
laws  of  God  on  which  the  common  law,  so  far  as  it  is  law, 
is  also  founded.  Anything  that  is  otherwise  established  is 
not  law  but  an  error." 

It  seems  to  be  a  fact,  therefore,  that  the  Common  Law 
was  regarded  as  binding,  only  so  far  as  it  was  expressive  of 
the  Law  of  God,  or  of  a  particular  statute  of  the  Colony. 
The  early  court  records  themselves  show  the  constant 
citation  of  scriptural  authority.  "The  reasons  of  appeal 
and  the  answers  make  much  use  of  quotations  from  Scrip- 
ture—  a  pertinent  quotation  seemed  sometimes  decisive 
in  settHng  a  disputed  point.  Possibly  there  was  sometunes 
a  readier  acquiescence  in  an  opinion  of  Moses  than  in  one 
of  the  Lord  High  Chancellor."  ^  It  is  evident  that  with 
such  a  basis  for  the  decisions  of  the  courts,  there  was  little 
need  of  lawyers  learned  in  the  English  Common  Law. 
"\Vhen  the  holy  Scriptures  were  considered  as  a  proper 
guide  in  all  cases  of  doubt,  and  the  parties  spoke  for  them- 
selves, there  was  no  place  for  an  order  of  lawyers."  ^  There 
can  be  little  wonder  therefore  that  "for  more  than  the  ten 

"to  that  fundami5ntal  maxim  in  our  law  by  which  nothing  is  to  be  counted 
as  law  that  is  contrary  to  the  law  of  God  or  of  reason." 

In  a  book  entitled  Quaternio  or  a  Fourfold  way  to  a  Happy  Life.  Set 
forth  in  a  Discourse  between  a  Countryman  and  a  citizen,  a  divine  and  a  lawyer, 
wherein  the  Commodities  of  the  Countrey  and  the  Cltie;  together  with  the  excel- 
lency of  Divinitie  and  the  Law  are  set  forth,  published  in  1636  by  Thomas 
Nash  of  the  Inner  Temple,  it  is  said:  "Now  because  it  is  a  hard  thing,  yea 
indeede  impossible  almost,  for  a  man  to  observe  these  lawes  which  he  knoweth 
not;  therefore  I  did  desire  to  know  the  Lawes  of  the  Kingdome  wherein  I 
lived  and  thereby  as  a  rule  to  frame  and  fashion  all  my  actions  by  ...  I 
had  often  heard  and  upon  Inquiry  I  have  found  it  to  be  true  that  all  Lawes 
politicall  are  meere  derivatives  out  of  the  primitive  Law  of  God  and  Nature." 

1  Early  Court  Files  of  Suffolk  County,  by  John  Noble,  Publications  of  the 
Massachusetts  Colonial  Society,  Vol.  Ill  (1895-1897% 

2  Address  before  the  Suffolk  Bar  on  Origin  and  History  of  the  Legal  Pro- 
fession in  Massachusetts,  by  William  Sullivan,  in  1825. 


COLONIAL  MASSACHUSETTS  BAR  67 

first  years,"  as  Hutchinson  says,  "the  parties  spake  for 
themselves  for  the  most  part;  sometimes,  when  it  was 
thought  the  cause  required  it,  they  were  assisted  by  a 
patron,  or  man  of  superior  abilities  without  fee  or  re- 
ward." ^  And  though  Ward,  in  a  sermon  preached  at  the 
annual  election  in  1641,  had  declared  that  the  magistrates 
"ought  not  to  give  private  advice  and  take  knowledge  of 
any  main  cause  before  it  came  to  pubhc  hearing,"  his 
proposition  was  rejected  on  the  ground  that  its  adoption 
would  render  it  necessary  to  pro\'ide  lawyers  to  direct 
men  in  their  causes. 

Probably  the  first  lawyer  in  the  Colonies  was  Thomas 
Morton,  described  by  Governor  Bradford  as  "a  kind  of 
pettie-foggcr  of  Furnewells  Inne,"  although  set  forth  by 
himself  on  the  title-page  of  his  book.  The  New  British 
Canaan  (1637),  as  "of  Clifford's  Inn  Gent."^  Governor 
Dudley  spoke  of  him  as  "a  proud,  insolent  man,"  who  had 
been  "an  attorney  in  the  West  Countries  while  he  lived 
in  England."  He  came  to  Massachusetts  in  1624  or  1625 
with  Captain  Wollaston  and  settled  in  what  is  now  Quincy. 
At  his  place  named  Merry  Mount  he  opened,  as  the  old 
chronicler  says, 

"a  school  of  atheisme,  set  up  a  maypole  and  did  quaff 
strong  waters  and  act  as  they  had  anew  revived  and  cele- 
brated the  feast  of  ye  Roman  Goddess  Flora  or  the  beastly 
products  of  ye  madd  Bacchanalians." 

*  History  of  Massackusetts  Bay  Colony,  by  Thomas  Hutchinson,  Vol.  I. 

2  Clifford's  Inn  and  FumewcU's  Inn  were  Inns  of  Chancery.  The  Inns 
of  Chancery  were  so  called,  "probably  because  they  were  appropriated  to 
such  clerks  as  chiefly  studied  the  forming  of  writs  which  was  the  province  of 
the  cursitors  who  were  ofiicers  of  Chancery,  such  as  belong  to  the  Courts 
of  Common  Pleas  and  King's  Bench,  and  in  Stowe's  time  were  chiefly  filled 
with  attorneys,  solicitors  and  clerks."  They  were  inferior  in  rank  to  the 
Inns  of  Court,  at  which  only  those  who  were  studying  to  be  called  as 
barristers  were  admitted.     See  Chapter  I,  supra. 


68  A  HISTORY  OF  THE  AMERICAN  BAR 

The  patience  of  the  rulers  being  exhausted,  he  was  im- 
prisoned and  then  shipped  out  of  the  Colony. 

The  first  educated  lawyer  who  practised  in  the  Colony 
appeared  on  the  horizon  in  1637  or  1638,  when  Thomas 
Lechford,  "of  Clement's  Inn  in  the  County  of  Middlesex, 
Gentleman, "  ^  landed  in  Boston.  For  three  years  he  was,  so 
Washburn  calls  him,  "the  Embodied  Bar  of  Massachusetts 
Bay."  ^  Under  the  conditions  prevalent,  he  found  the  prac- 
tise of  law  in  Boston  far  from  lucrative;  and  he  described 
himself  as  being  supported  largely  as  a  scrivener  "in  writ- 
ing petty  things."  Little  is  known  of  him;  but  it  is  cer- 
tain that  his  legal  knowledge  was  of  value  in  the  Colony, 
for  it  was  at  his  suggestion  that  a  law  was  passed  in  1639, 
by  which  it  was  ordered,  that  in  order  that  the  records 
should  "bee  of  good  use  for  president  to  posterity  .  .  . 
every  judgment  with  all  the  evidence  bee  recorded  in  a  book, 
to  bee  kept  to  posterity."^ 

In  1639,  his  habits  brought  him  into  such  trouble  with  the 
authorities,  that  at  a  Quarter  Court  in  September  it  was 
ordered,  that  "Mr.  Thomas  Lechford  for  going  to  the  Jewry 
and  pleading  with  them  out  of  court  is  debarred  from  plead- 
ing any  main  cause  hereafter  unless  his  own  and  admonished 
not  to  presume  to  meddle  beyond  what  he  shall  be  called  to 
by  the  court."  In  1640,  he  was  "convented"  before  the 
Quarter  Court,  and,  according  to  the  record,  "acknowledged 
he  had  overshot  himself,  and  was  sorry  for  it,  promised 

1  Mr.  Justice  Shallow  — "By  yea  or  nay,  sir,  I  dare  say  my  cousin 
William  is  become  a  good  scholar.    He  is  at  Oxford,  still,  is  he  not  ?  " 

Silence  —  "Indeed,  sir,  to  my  cost." 

Shallow  —  "He  must  then  to  the  inns  of  court  shortly.  I  was  once  of 
Clement's  Inn,  where,  I  think,  they  will  talk  of  mad  Shallow  yet."  —  King 
Henry  IV,  Part  II,  Act  III,  Scene  2  (Printed  in  1600). 

*  Judicial  History  of  Massachusetts,  by  Emory  Washburn  (1840). 

8  Mass.  Colony  Records,  Vol.  I,  p.  275.  To  him  therefore  is  owed  the 
Records  of  the  Court  of  Assistants  (published  first  in  print  in  Massachusetts 
in  1901). 


COLONIAL  MASSACHUSETTS  BAR  69 

to  attend  to  his  calling,  and  not  to  meddle  with  controver- 
sies, and  was  dismissed."  In  1642,  after  his  return  to 
England,  he  published  his  Plaine  Dealing  or  News  from  New 
England,  from  which  it  appears  that  his  trouble  with  the 
courts  was  due  to  the  fact  that  he  tried  to  set  up  the  Com- 
mon Law,  while  the  Puritan  courts  cared  nothing  at  all 
for  the  Common  Law,  but  were  trying  to  set  up,  especi- 
ally in  criminal  matters,  the  Mosaic  Law.^  The  foreman, 
he  wrote,  gave  the  charge  to  the  grand  juries,  "under 
the  heads  of  the  ten  commandments,"  and  this  was  his 
warning : 

"  I  fear  it  is  not  a  little  degree  of  pride  and  dangerous  im- 
providence to  slight  all  former  laws  of  the  church  and  state, 
cases  of  experience  and  precedents,  to  hammer  out  new, 
according  to  several  exigencies,  upon  pretence  that  the 
Word  of  God  is  sufficient  to  rule  us." 

It  has  been  said  that  it  was  because  of  their  experience 
with  Lechford  that  the  colonists  adopted  Article  No.  26 
of  the  Body  of  Liberties,  providing  that:  "Every  man  that 
findeth  himself  unfit  to  plead  his  own  cause  in  any  Court 
shall  have  Liberty  to  employ  any  man  against  whom  the 
Court  doth  not  except  to  help  him,  provided  lie  give  him  no 
fee  or  reward  for  his  pains."  This  statute  remained  in 
force,  however,  only  a  few  years. 

Forty  years  passed  on  after  Lechford's  disgusted  return 
to  London,  and  still  no  educated  lawyer  appeared  in 
Tvlassachusetts.  There  were,  however,  attorneys  of  some 
kind,  as  they  are  mentioned  in  the  records  of  the  General 
Court  in  1649  ^^^  elsewhere.  Little,  however,  is  kno^^Tl 
of  them,  and  they  were  doubtless  what  Governor  Winthrop 
would  call  "mean  men,"  of  but  little  or  no  legal  education. 

1  The  First  Lawyer  in  Boston,  —  Amer.  Law  Rev.,  Vol.  XIX.    See  also 
Mass.  Col.  Rcc,  Vol.  I,  p.  270. 


70  A  HISTORY  OF  THE  AMERICAN  BAR 

They  appeared,  probably  by  special  powers,  and  by  judicial 
requisition.^ 

In  1663,  an  act  was  passed  prohibiting  every  person  who 
was  a  "usual  or  common  attorney  in  any  Inferior  Court" 
from  sitting  as  a  Deputy  in  the  General  Court;  -  and  in  1656 
an  act  was  passed,  providing  that: 

"This  court  taking  into  consideration  the  great  charge 
resting  upon  the  colony  by  reason  of  the  many  and  tedious 
discourses  and  pleadings  in  court,  both  of  plaintiff  and 
defendant,  as  also  the  readiness  of  many  to  prosecute  suits 

^  See  Address  to  Worcester  County  Bar,  October  2,  i82g,  by  Joseph  Wil- 
lard.  Thus  in  1652,  in  Middlesex,  Mr.  Coggan  appeared  as  attorney  to 
Stephen  Day,  the  first  printer:  in  1654,  in  the  case  of  Ridgway  against  Jor- 
dan, the  defendant  appeared  by  his  attorney,  Amos  Richardson:  and  in 
1656,  in  the  case  of  John  Glover  against  Henry  Dunster,  who  had  been  presi- 
dent of  Harv^ard  College,  Edmund  Gofle  and  Thomas  Danforth  appeared 
for  the  plaintiff.  This  Amos  Richardson  was  a  tailor,  and  Coggan  (John) 
was  in  the  mercantile  business  and  kept  the  first  shop  in  Boston.  Goffe, 
then  an  old  man,  was  for  several  years  the  representative  from  Cambridge, 
and  Danforth  also;  and  the  latter,  besides,  filled  the  office  of  assistant  and 
deputy  governor;  but  neither  of  them  was  of  the  legal  profession. 

2  The  date  of  this  is  sometimes  given  as  1654,  but  Willard  considers 
1663  as  the  more  accurate.  This  provision  of  law  is  strangely  suggestive 
of  the  famous  "Dunces'  Parliament"  held  in  1404  at  the  order  of  Henry  IV, 
and  described  by  Sir  Edward  Coke  as  follows:  "At  a  parliament  holden  at 
Coventry  Anno  6  H  4  the  parliament  was  summoned  by  writ  and  by  colour 
of  the  said  ordinance  it  was  forbidden  that  no  lawyer  should  be  chosen 
knight,  citizen,  or  burgess,  by  reason  whereof  this  parliament  was  fruitless 
and  never  a  good  law  made  thereat,  and  therefore  called  indoctum  parlia- 
mentum  or  lack  learning  parliament,  and  seeing  these  writs  were  against 
law,  lawyers  ever  since  (for  the  great  and  good  service  of  the  Common- 
wealth) have  been  eligible;  for  as  it  hath  been  said  the  writs  of  parliament 
cannot  be  altered  without  an  act  of  parliament;  and  albeit  the  prohibitory 
clause  had  been  inserted  in  the  writ,  yet  being  against  law,  lawyers  were  of 
right  eligible  and  might  have  been  elected  knights,  citizens,  or  burgesses  in 
that  parliament  of  6  H  4." 

See  New  York  Bar  Ass.  Proc,  Vol.  XHI. 

James  I  issued  a  proclamation  to  voters  for  members  of  Parliament 
directing  them  "not  to  choose  curious  and  wrangling  lawyers  who  seek 
reputation  by  stirring  needless  questions."     See  Green,  Bag,  Vol.  V  (1893). 


COLONIAL  MASSACHUSETTS  BAR  71 

in  law  for  small  matters:  it  is  therefore  ordered  by  this 
court  and  the  authority  thereof  that  when  any  plaintiff  or 
defendant  shall  plead  by  himself  or  his  attorney  for  a 
longer  time  than  one  hour,  the  party  that  is  sentenced  or 
condemned  shall  pay  twenty  shillings  for  every  hour  so 
pleading  more  than  the  common  fees  appointed  by  the 
court  for  the  entrance  of  actions,  to  be  added  to  the  execu- 
tion for  the  use  of  the  country." 

It  was  not  until  1647  that  any  English  law  books  were  to 
be  found  in  the  Colony,  when  the  Governor  and  Assistants 
ordered  the  importation  of  two  copies  each  of  Sir  Edward 
Coke  on  Littleton;  the  Book  of  Entries;  Sir  Edward  Coke 
on  Magna  Charta;  the  New  Terms  of  Laiv;  Dalton's  Jus- 
tices of  the  Peace;  and  Sir  Edward  Coke's  Reports,  "to  the 
end  that  we  may  have  better  light  for  making  and  pro- 
ceeding about  laws."  And  in  1650,  it  was  ordered  that 
"whereas  this  Commonwealth  is  much  defective  for  want 
of  laws  for  maritime  affairs  and  for  as  much  as  there  are  al- 
ready many  good  laws  made  and  published  by  our  own  land 
and  the  French  Nation  and  other  kingdoms  and  common- 
wealths .  .  .  the  said  laws  printed  and  published  in  a 
book  called  Lex  Mercatoria  shall  be  perused  and  duly 
considered  and  such  of  them  as  are  approved  by  tliis  court 
shall  be  declared  and  published  to  be  in  force  in  this 
jurisdiction." 

Throughout  the  Seventeenth  Century,  the  forms  of 
judicial  proceedings  were  exceedingly  simple.  The  writs 
were  concise  and  the  proceedings  summary.  Testimony 
was  given  in  open  court  and  written  down  by  the  clerk  in 
the  form  of  depositions  and  became  a  part  of  the  record 
of  the  case.  The  questioning  of  witnesses  was  principally 
by  the  court.  "Little  regard,  was  paid  to  forms  of  action. 
They  had  actions  of  replevin,  debt  and  trespass,  and  some- 
times adopted  a  proper  form  of  process  to  recover  possession 
of  real  estate.     But  the  most  common  form  of  action,  as 


72  A  HISTORY  OF  THE  AMERICAN  BAR 

well  to  recover  lands  as  damages  for  direct  and  immediate 
injuries,  was  that  of  case."  ^ 

"The  records  which  have  survived  indicate  that  the 
administration  of  justice  was  regular  and  systematic.  .  .  . 
The  magistrates  maintained  a  somewhat  patriarchal  at- 
titude, and  in  the  justice  which  they  administered  there 
was  a  large  element  of  equity.  .  .  .  The  impression  gained 
from  the  records  is  that,  on  the  whole,  the  declaration 
contained  in  the  first  clauses  of  the  Body  of  Liberties,  guar- 
anteeing the  resident  against  arbitrary  judicial  action  was 
made  good  in  practise.  The  spirit  of  justice  was  there, 
although  by  no  means  all  its  modern  safeguards,  such  as 
elaborate  judicial  formaHties  and  rules  of  evidence,  the  ac- 
tivity of  attorneys,  and  the  presumption  that  the  accused 
is  innocent  until  he  is  proven  guilty.  But  in  cases  where 
rehgious  and  governmental  prejudices  were  concerned, 
defendants  had  Httle  protection.  The  magistrates  were 
judges,  attorneys  and  accusers  —  all  in  one;  the  exaction  of 
an  oath  from  witnesses  and  the  services  of  attorneys  were 
denied  to  the  defendants."  ^ 

In  1686,  a  new  court,  the  Superior  Court,  was  created 
under  the  new  Governor,  Sir  Edmund  Andros,  composed  of 
a  majority  of  the  Councillors.  Three  judges  were  ap- 
pointed, no  one  of  whom  was  a  lawyer  —  William  S  tough- 
ton,  Chief  Justice,  John  Richardson  and  Simon  Lynde. 
Benjamin  Bullivant,  a  physician  and  apothecary,  was  ap- 
pointed Attorney- General  —  a  man  of  "considerable  elo- 
quence and  knowledge  of  laws." 

At  the  same  time,  a  table  of  attorneys'  fees  was  estab- 
lished; and  attorneys  were  obliged,  upon  admission  to  the 
Bar,  to  take  oath.     This  was  the  earhest  prescribed  attor- 

^  Judicial  History  of  Massachusetts,  by  Emory  Washburn. 
2  The  American  Colonies  in  the  Seventeenth  Century,  by  H.  L.  Osgood 
(1904-1907). 


COLOXLAX  MASSACHUSETTS  BAR  73 

neys'  oath  in  all  the  Colonies,  and  followed,  largely,  the 
wording  of  the  oath  then  established  in  England.  Giles 
Masters,  Capt.  Nathaniel  Thomas,  Anthony  Checkley,  a 
merchant  and  military  man,  Christopher  Webb,  a  mer- 
chant, and  John  Watson,  a  merchant,  were  admitted  and 
sworn  as  attorneys. 

There  were  still  no  trained  lawyers  in  the  Province,  so 
that  Edward  Randolph,  Secretary  to  Governor  Andros, 
wrote  to  England  in  1689: 

"I  have  wrote  you  the  want  we  have  of  two,  or  three, 
honest  attorneys,  (if  any  such  thing  in  nature).  We  have 
but  two;  one  is  West's  creature,  —  came  with  him  from 
New  York,  and  drives  all  before  him.  He  also  takes  ex- 
travagant fees,  and  for  want  of  more,  the  country  cannot 
avoid  coming  to  him  so  that  we  had  better  be  quite  without 
them  than  not  to  have  more.  I  have  wrote  Mr.  Black- 
thwaite  the  great  necessity  of  judges  from  England."  ^ 

But  the  necessity  of  procuring  judges  and  lawyers  from 
England  was  soon  to  pass  away.  For  in  1686  Benjamin 
Lynde  graduated  from  Harvard  College,  and  "was  ad- 
mitted," his  Diary  says, 

"for  the  study  of  the  law  (as  my  father  had  advised) 
into  the  Honorable  Society  of  the  Middle  Temple  as  by  the 
admission  of  October  18,  1692,"  ^ 

A  new  royal  charter  for  Massachusetts  was  granted  by 
Kmg  WilHam  in  1691 ;  and  with  it  began  a  new  era  for  the 
law. 

The  courts  became  an  institution,  separate  and  distinct 

1  The  two  were  probably  James  Graham,  Attorney-General  under 
Andros,  and  George  Farwell,  Clerk  of  the  Court  of  Oyer  and  Terminer. 

2  Benjamin  Lynde  was  made  Judge  of  the  Superior  Court  in  Massa- 
chusetts in  1712  and  Chief  Justice  in  1728. 

On  the  occasion  of  publishing  Judge  Lynde's  commission,  Judge  Sewall, 
in  an  address  to  the  jury,  remarked,  "  that  they  would  hereafter  have  the 
benefit  of  Inns  of  Court  education,  superadded  to  that  of  Har\-ard  College." 


74  A  HISTORY  OF  THE  AMERICAN  BAR 

from  the  magistrates.  The  judges,  however,  held  their 
commissions  at  the  King's  pleasure,  and  were  chosen  by 
the  Royal  Governors,  still  largely  influenced  by  the  clergy, 
who  preferred  men  with  no  legal  training. 

In  1690,  an  act  was  passed,  approved  by  the  King  in 
1699,  which  established  a  Superior  Court  of  Judicature 
and  inferior  courts;  at  the  same  time,  forms  of  writs  were 
directed,  and  the  courts  were  empowered  to  make  rules  for 
the  regulation  of  practise.  No  one  of  the  judges  appointed, 
however,  was  a  lawyer. 

A  similar  condition  prevailed  in  that  Court  of  Special 
Oyer  and  Terminer,  appointed  in  1692,  to  try  the  witchcraft 
cases.  In  this  court.  Chief  Justice  William  Stoughton  and 
Judge  Samuel  Sewall  were  educated  for  the  ministry, 
Judges  Nathaniel  Saltonstall  and  Peter  Sergeant  were 
gentlemen  without  a  profession,  Judges  Wait  Winthrop  and 
Jonathan  Curwin,  and  Anthony  Checkley,  the  Attorney- 
General,  were  merchants  or  mihtary  men. 

It  may  be  noted,  however,  that  this  absence  of  legal 
training  was  not  confined  to  the  Colonies,  for  several  of  the 
Lord  Chief  Justices  of  England  in  this  Century  were  men  of 
little  education  at  the  Bar;  and  of  Sir  John  Kelynge,  who 
was  at  the  head  of  the  King's  Bench  under  Charles  II,  it 
was  said,  that  "however  fit  he  might  have  been  to  charge 
the  Roundheads  under  Prince  Rupert,  he  was  very  unfit 
to  charge  a  jury  in  Westminster  Hall."  ^ 

^  WTiile  the  witchcraft  court  has  been  criticised  for  its  reckless  disregard 
of  rules  of  evidence,  and  also  for  condemning  the  defendants  unheard,  it  is 
to  be  remembered  that'  no  defendant  at  this  time,  even  in  England,  was 
allowed  to  have  counsel  to  plead  for  him  in  a  criminal  trial  for  felony  or  trea- 
son. It  was  not  until  1696  (7-8  William  III,  c.  3)  that  this  privilege  was 
granted  to  persons  accused  of  treason,  and  not  until  1836  (6-7  William  IV, 
c.  114),  in  cases  of  felony. 

An  interesting  defence  of  the  legal  ability  of  this  court  is  made  by  Abner 
E.  Goodell  in  a  paper  on  Wilck  Trials  in  Massachusetts,  —  Mass.  Hist.  Soc. 
Proc,  Vol.  XX    (1883),  in  which  he  says:  "The  regret  which  some,  in 


COLONIAL  MASSACHUSETTS  BAR  75 

Unlike  the  Colonies  outside  of  New  England,  the  Chief 
Justices  in  Massachusetts  continued  to  be  laymen  in  many 
instances,  even  down  to  the  War  of  the  Revolution.  Thus  the 
first,  William  Stoughton  (Chief  Justice  1692-1701),  was  a 
clergyman;^  his  successor,  Waite  Winthrop  (Chief  Justice 
1701  and  1 708-1 7 1 7),  was  a  physician;-  Isaac  Addington 
(1702-1703)  was  a  physician;^  Samuel  Sewall  (1718-1728) 
was  a  clergyman;^  Benjamin  Lynde  (1728-1745)  was  a 
barrister  of  the  Middle  Temple;  '^  his  successor,  Paul  Dudley 
(1745-1751),  was  a  barrister  of  the  Inner  Temple;^  Stephen 
Sewall  (1752-1760)  was  a  tutor  in  Harvard  College;^ 
Thomas  Hutchinson  (1761-1769)  was  a  wealthy  merchant;  ^ 
Benjamin  Lynde,  the  younger  (i 769-1 771),  had  a  legal 
education  in  the  Colony;^  Peter  Oliver  (1772-1775)  was  a 
literary  man.^° 

Of  the  twenty-three  associate  judges,  Edmund  Trow- 
bridge, Chambers  Russell "  and  William  Cushing  were  the 

consequence  of  the  representations  of  late  writers  upon  the  witch  trials,  may 
have  been  led  to  feel,  that  those  trials  had  not  been  conducted  by  lawyers, 
is  not  warranted  by  the  disclosure  of  the  records  of  the  tribunals  of  England 
or  her  colonies  if  it  springs  from  the  belief  that  a  more  humane  and  rational 
course  of  procedure  might,  in  that  case,  have  been  expected  .  .  •  Lawyers 
and  laymen,  as  well  as  clergj'men,  were  equally  under  the  influence  of  the 
superstitious  terrors  of  that  day  of  darkness  and  delusion." 

It  is  to  be  noted  that  as  late  as  1676  two  women  had  been  tried  as 
witches  before  Sir  Matthew  Hale  in  England,  and  executed. 

1  Born  in  1631,  Harvard  graduate  of  1650. 

2  Born  1642,  grandson  of  John  Winthrop,  Judge  of  Admiralty  1699. 
'  Born  1645. 

*  Born  1652,  Harvard  1671,  Judge  of  Probate  1715-1 72S. 

^  Born  1666,  Harvard  16S6,  Advocate-General  of  the  Court  of  Ad- 
miralty 1697. 

•5  Bom  1675,  Harvard  1690,  Attorney-General  1702. 

^  Born  1704,  Harvard  1721. 

8  Born  1 71 1,  Harvard  1727,  Judge  of  Probate  1752,  Lieutenant-Gov- 
ernor 1758. 

'  Born  1700,  Harvard  1718. 
"  Born  1 7 13,  Harvard  1730. 
"  Born  1713,  Harvard  1731,  Judge  of  Probate  1752. 


76  A  HISTORY  OF  THE  AMERICAN  BAR 

only  ones  who  had  any  regular  legal  education,  the  rest 
being  la^Tnen  or  men  trained  for  the  ministry.  Roger 
Mompesson  and  Robert  Auchmuty,  Judges  of  Admiralty, 
had  been  English  barristers.  No  other  trained  lawyers 
appeared  on  the  Bench.^ 

Notwithstanding  their  lack  of  systematic  legal  training, 
however,  many  of  these  judges  were  men  of  great  learning 
and  some  of  them  had  read  considerable  law.  Thus  it  has 
been  said  of  William  Stoughton  that :  ^ 

"  He  had  extraordinary  attainments  in  legal  learning.  .  .  . 
It  is  true  that  he  as  well  as  Dudley  and  Sewall  was  bred  a 
clergyman;  but  those  who  imagine  that  the  study  of  divin- 
ity unfits  the  student  for  forensic,  legislative  or  magisterial 
duties  are  to  be  reminded  that  the  legal  is  but  a  lay  branch 
of  the  clerical  profession  from  which  it  sprung;  and  that  the 
secularizing  of  jurisprudence  is  a  work  of  modern  times.  .  .  . 
I  think  the  three  magistrates  I  have  named,  each  of  whom 
acceptably  held  the  post,  either  in  Massachusetts  or  New 
York,  of  Chief  Justice  of  the  highest  judicial  court  will 
compare  favorably  in  respect  to  all  those  acquirements 
necessary  to  the  proper  conduct  of  trials  and  the  adminis- 
tering of  forensic  justice,  with,  at  least,  the  average  bench- 
ers of  the  Inns  of  Court  in  the  days  of  William  and  Anne." 

So,  too,  of  Samuel  Sewall,  Washburn  says: 

"From  a  perusal  of  his  journal  it  is  apparent  that  he  had 
a  natural  taste  for  legal  science  which  he  had  cultivated  by 
a  very  respectable  course  of  study.  .  .  .  He  must  have 
been  altogether  better  read  in  the  principles  of  the  Common 
Law  than  any  other  judge  upon  the  bench." 

Thomas  Hutchinson,  being  a  man  of  hberal  culture,  had 

^  It  is  a  noticeable  fact,  however,  that  20  out  of  33  of  the  Superior  Court 
Judges,  though  without  legal  training,  were  graduates  of  Harvard  College. 
And  even  of  the  judges  of  the  lower  Courts  of  Common  Pleas  in  Suffolk 
County,  12  out  of  25  were  graduates  of  Harvard;  in  Middlesex,  7  out  of  20; 
in  Essex,  12  out  of  30;  in  Plymouth,  8  out  of  19. 

2  See  Witch  Trials  in  Massachusetts,  by  Abner  E.  Goodell.  Mass. 
Hist.  Soc.  Proc,  Vol.  XX  (1883). 


COLONIAL  MASSACHUSETTS  BAR  77 

devoted  much  time  to  the  reading  of  law,  though  he  had 
never  practised  ;  but,  as  he  remarks  in  his  Diary: 
"Though  it  was  an  eyesore  to  some  of  the  Bar  to  have  a 
person  at  the  head  of  the  law  who  had  not  been  bred  to  it, 
he  had  reason  to  think  the  lawyers  in  general  at  no  time 
desired  his  removal."^ 

That  the  lawyers  were  restive  under  the  Chief  Justice's 
lack  of  legal  knowledge  is  shown,  however,  in  a  letter 
written  by  John  Adams  to  William  Tudor,  regarding  a 
controversy  between  the  Governor  and  the  General  Court 
in  which  he  had  appeared  as  counsel  i^ 

"Mr.  Hutchinson  had  wholly  misunderstood  the  legal 
doctrine  of  allegiance.  ...  I  had  quoted  largely  from  a 
law  authority  which  no  man  in  Massachusetts  had  ever 
read.  Hutchinson  and  all  his  law  counsels  were  in  fault; 
.  .  .  They  dared  not  deny  it  lest  the  book  should  be  pro- 
duced to  their  confusion.  It  was  humorous  enough  to  see 
how  Hutchinson  wriggled  to  evade  it.  He  found  nothing 
better  to  say  than  that  it  was  'the  artificial  reasoning  of 
Lord  Coke.'  The  book  was  Moore's  Reports.  ...  It  had 
been  Mr.  Gridley's." 

It  was  not  until  1701  that  practise  of  the  law  became 
first  dignified  as  a  regular  profession,  through  the  require- 
ment by  statute  of  an  oath  for  all  attorneys  admitted  by 
the  courts,  as  follows: 

"  You  shall  do  no  falsehood,  nor  consent  to  any  to  be  done 
in  the  court,  and  if  you  know  of  any  to  be  done  you  shall 
give  knowledge  thereof  to  the  Justices  of  the  Court,  or  some 

1  An  interesting  sidelight  is  thrown  on  this,  by  an  entry  in  his  diar>'  under 
date  of  July  22,  1774,  when  he  was  in  England  visiting  Sir  Francis  Bernard. 

"Sir  Francis  mentioned  among  other  things  that  he  apologized  to  Lord 
Mansfield  for  appointing  me  Chief  Justice,  not  having  been  bred  to  the  law; 
adding  that  he  had  no  cause  to  repent  it.     Lord  Chief  Justice  Wilmot 

being  by,  broke  out  with  an  oath,  "By ,  he  did  not  make  a  worse  chief 

justice  for  that!"     See  Diary  of  Thomas  Hutchinson,  p.  195. 

«  Life  of  Thomas  Hutchinson,  by  James  K.  Hosmer  (1S96). 


78  A  HISTORY  OF  THE  AIMERICAN  BAR 

of  them,  that  it  may  be  reformed.  You  shall  not  ^^'ittingly 
and  willingly  promote,  sue  or  procure  to  be  sued  any  false 
or  unlawful  suit,  nor  give  aid  or  consent  to  the  same. 
You  shall  delay  no  man  for  lucre  or  malice,  but  you  shall 
use  yourself  in  the  ofitice  of  an  attorney  within  the  court 
according  to  the  best  of  your  learning  and  discretion, 
and  with  all  good  fidelity  as  well  to  the  courts  as  to  your 
clients."  ^ 

At  the  same  time,  the  General  Court  estabhshed  forms  of 
writs,  and  authorized  the  courts  to  establish  rules  of  prac- 
tise. It  was  some  time,  however,  before  there  were  any 
strict  legal  forms  or  technical  rules  in  use  in  the  courts,  and 
most  of  the  early  improvements  in  judicial  procedure  and 
much  of  the  enhanced  elevation  of  the  character  of  the 
profession  were  due  to  the  individual  efforts  of  the  two 
EngUsh  barristers  in  the  Colony  —  Paul  Dudley,  the  first 
lawyer  to  sit  on  the  bench,  Judge  of  the  Superior  Court 
from  1718  to  1751,  and  Robert  Auchmuty,  who  practised 
in  Massachusetts  as  early  as  17 19. 

The  scarcity  of  lawyers  and  the  fear  that  a  party  might 
be  able  to  retain  the  whole  Bar  to  the  prejudice  of  his 
adversary  are  shown  by  the  enactment  of  a  statute  in  17 15, 
providing  that  "no  person  shall  entertain  more  than  two 
of  the  sworn  allowed  attorneys  at  law,  that  the  adverse 
party  may  have  liberty  to  retain  others  of  them  to  assist 
him,  upon  his  tender  of  the  established  fee,  which  they  may 
not  refuse."  ^ 

At  first  the  native  lawyers  were,  in  general,  men  of  little 

1  This  oath  followed  almost  exactly  the  form  set  forth  in  England  in 
The  Book  of  Oaths  (1649);  ^^nd  see  also  The  Pradick  Part  of  the  Law  (i6y6). 

Practically  this  same  form  of  oath  was  prescribed  in  Connecticut  in 
1708,  in  Pennsylvania  in  1726,  in  Virginia  in  1732. 

^  This  provision  appeared  again  in  1785;  and  as  late  as  1836  (Rev. 
St.,  ch.  88,  sect.  26)  it  was  provided  that,  no  more  than  two  persons  for  each 
party  should,  without  permission  of  the  court,  be  allowed  to  manage  any 
case. 


COLONIAL  MASSACHUSETTS  BAR  79 

distinction;  although  among  those  sworn  in  1701,  there 
were  two  of  real  ability  —  Thomas  Newton  and  Joseph 
Hearne. 

During  the  first  half  of  the  Eighteenth  Century,  New 
England  was  crippled  by  foolish  financial  management, 
through  the  unlimited  issue  of  paper  money,  and  from 
1704  to  1 74 1  the  depreciation  of  the  currency  produced 
innumerable  troubles.  These  conditions  gave  rise  to  much 
litigation;  and  William  Shirley  reported  to  the  Board  of 
Trade,  in  1743,  that: 

"It  was  not  infrequent  for  persons  of  some  circumstances 
and  character  to  suffer  judgments  to  be  given  against 
them  by  default  in  open  court  for  such  debts,  and  to  appeal 
from  one  court  to  another  merely  for  delay;  whereby  law- 
suits were  scandalously  multiplied  and  a  litigious,  trickish 
spirit  promoted  among  the  lower  sort  of  people."  ^ 

In  1747,  Dr.  Douglass  wrote  in  his  Summary : 

"Generally  in  all  our  colonies,  particularly  in  New 
England,  people  are  much  addicted  to  quirks  of  the  law. 
A  very  ordinary  countryman  in  New  England  is  almost 
qualified  for  a  country  attorney  in  England."  ^ 

John  Adams,  writing  to  WUliam  Gushing  in  1756,  ex- 
pressed a  low  estimate  of  the  legal  profession: 

"Let  us  look  upon  a  lawyer.  In  the  beginning  of  life 
we  see  him  fumbhng  and  raking  amidst  the  rubbish  of  writs, 
indictments,  pleas,  ejectments,  enfiefed,  illatebration  and 
one  thousand  other  lignum  vitae  words  which  have  neither 
harmony  nor  meaning.  When  he  gets  into  business,  he 
often  foments  more  quarrels  than  he  composes,  and  enriches 
himself  at  the  expense  of  impoverishing  others  more  honest 
and  deserving  than  himself.  Besides,  the  noise  and  fume 
of  Courts  and  the  labour  of  inquiring  into  and  pleading  dry 

*  Life  of  Thomas  Hutchinson,  by  James  K.  Hosmer,  p.  20  (1896). 

'  A  Summary,  Historical  and  Political,  of  the  First  PlaHtiyig,  Progressive 
Improvements  and  Present  State  of  the  British  Settlements  in  North  America, 
by  William  Douglass  (London,  1747). 


So  A  HISTORY  OF  THE  AMERICAN  BAR 

and  difficult  cases  have  very  few  charms  in  my  eyes.  The 
study  of  law  is  indeed  an  avenue  to  the  more  important 
offices  of  the  State  and  the  happiness  of  the  human  society  is 
an  object  worth  the  pursuit  of  any  man.  But  the  acquisi- 
tions of  these  important  offices  depends  upon  many  cir- 
cumstances of  birth  and  of  fortune,  not  to  mention  capacity, 
which  I  have  not,  and  I  can  have  no  hopes  of  being  useful 
that  way."^ 

And  even  as  late  as  1758,  Adams,  having  finally  decided 
to  adopt  the  profession  which  he  had  thus  condemned, 
stated  that  he 

"found  the  practice  of  law  was  grasped  into  the  hands  of 
deputy  sheriffs,  pettifoggers,  and  even  constables,  who 
filled  all  the  writs  upon  bonds,  promissory  notes  and  ac- 
counts, and  received  the  fees  established  for  lawyers,  and 
stirred  up  many  unnecessary  suits." 

Nevertheless,  during  the  first  forty  years  of  the  Eighteenth 
Century,  a  small  Bar  of  native  lawyers  of  really  great  ability 
was  slowly  being  established;  and  to  their  learning  and 
influence  was  due  the  gradual  growth  of  forms,  special 
pleading  and  general  judicial  development. 

The  Nestor  of  them  was  John  Read,  who,  born  in  1679, 
graduated  from  Harvard  in  1697,  studied  in  Connecticut 
and  was  admitted  to  the  Bar  in  New  Haven  in  1708.  Before 
his  death  in  1749,  he  acquired  the  reputation  of  being  "the 
greatest  common  lawyer  that  ever  lived  in  New  England." 
Of  him,  Adams  said  later:  "He  had  as  great  a  genius  and 
became  as  eminent  as  any  man."  To  him  is  due  many  of 
the  forms  of  writs,  actions,  declarations  and  conveyancing 
later  in  use.  He  was  retained  by  the  Colony  of  Connecticut, 
and  also  by  Massachusetts,  in  important  boundary  dispute 
cases  with  New  York,  New  Hampshire  and  Rhode  Island; 
also  for  the  town  of  Boston  in  many  cases,  one  of  par- 

'  Published  ia  Nantucket  Gazette  (1817). 


COLONIAL  MASSACHUSETTS  BAR  8i 

ticular  importance  involving  the  title  to  Dock  square, 
tried  for  six  years  and  appealed  to  the  King  in  Council, 
where  he  won.^ 

After  Read  came  Jeremiah  Gridley,  who,  born  in  1702,  a 
Harvard  graduate  of  1725,  studied  first  for  the  ministry  and 
later  became  "the  father  of  the  Boston  Bar,"  Attorney- 
General  in  1742  and  again  in  1761,  and  the  great  legal 
scholar  of  the  Century.  His  office  was  the  training  school 
for  James  Otis,  Jr.,  and  John  Adams,  of  whom  Gridley  used 
to  observe,  that  "he  had  reared  two  young  eagles  who 
were  one  day  to  peck  out  his  eyes."  Oxenbridge  Thacher, 
Benjamin  Pratt  (later  Chief  Justice  of  New  York),  and 
William  Gushing  (later  Chief  Justice  of  the  Supreme 
Court  of  Massachusetts  and  Justice  and  Chief  Justice  of 
the  Supreme  Court  of    the  United  States)  were  also  his 

pupils. 

Judge  Edmimd  Trowbridge,  born  in  1709,  a  Harvard 
graduate  of  1728,  was  the  great  "real  estate"  lawyer  of 
the  time,  termed  by  Chief  Justice  Isaac  Parker,  in  1813, 
"  perhaps  the  most  profound  common  lawyer  of  New 
England  before  the  Revolution."  His  opinions  and  his 
essay  on  the  law  of  mortgages  were  considered  of  such  value 
as  to  be  annexed  (after  his  death  in  1792)  to  volume  eight 
of  Massachusetts  Reports;  and  such  was  his  learning  and 
ability,  that  it  is  said  by  John  Adams,  that  he  had  the 
entire  command  of  the  practise  in  Middlesex,  Worcester 
and  several  other  counties,  and  had  the  power  to  crush 
any  young  lawyer  by  a  frown  or  nod.  In  his  office  in 
Cambridge  studied  Francis  Dana  and  Theophilus  Parsons 
(both  of  whom  became  Chief  Justices  of  the  Supreme  Court 
of  the  State  of  Massachusetts),  James  Putnam,  Royall  Tyler 
(Chief  Justice  of  Vermont),  Rufus  King,  Christopher  Gore 
and  Harrison  Gray  Otis. 

1  Lije  oj  John  Read,  by  George  B.  Read  (1903). 


82  A  HISTORY  OF  THE  AJVIERICAN  BAR 

Contemporary  with  Gridley  were  William  Shirley, 
Robert  Auchmuty  and  William  Bollan,  who  were  native 
English  lawyers,  Richard  Dana/  Benjamin  Kent,^  James 
Otis,  Sr.,^  Timothy  Ruggles'^  and  Benjamin  Pratt.^ 

It  was  of  these  men  that  John  Adams  wrote  in  his  Diary, 
as  a  young  law  student,  October  24,  1758: 

"Went  into  the  court  house  and  sat  down  by  Mr.  Paine 
at  the  lawyers'  table.  I  felt  shy  under  awe  and  concern; 
for  Mr.  Gridley,  Mr.  Pratt,  Mr.  Otis,  Mr.  Kent  and  Mr. 
Thacher  were  all  present  and  looked  sour.  I  had  no 
acquaintance  with  anybody  but  Paine  and  Quincy  and 
they  took  but  little  notice." 

About  two  decades  later,  another  group  of  lawyers  added 
distinction  to  the  Bar  —  James  Otis,  Jr.,^  Oxenbridge 
Thacher/  Samuel  Adams,^  Jonathan  Sewall,^  Robert 
Treat  Paine,^°  John  Worthington "  and  Joseph  Hawley,^^ 
the  two  latter  being  the  most  prominent  of  the  few  lawyers 
practising  in  the  western  part  of  the  Province. 

About  1765,  just  prior  to  the  Revolution,  a  third  group  of 
eminent  young  lawy-ers  of  considerable  law  learning  began 

1  Born  in  1700,  Harvard  graduate  of  1718. 

2  Bom  about  1705,  Harvard  1727,  educated  as  a  clergyman. 

'  Born  in  1702,  father  of  James  Otis,  Jr.,  Attorney- General  1748. 

*  Bom  in  1711,  Harvard  1732. 

*  Bom  in  1710,  Harvard  1737,  Chief  Justice  of  New  York  in  1761. 

*  Bom  in  1725,  Harvard  1743,  studied  with  J.  Gridley. 

^  Bom  in  1720,  Harvard  1738,  studied  for  the  ministry,  later  studied 
law  with  J.  Gridley. 

8  Bom  in  1722,  Harvard  1740. 

*  Bom  in  1728,  Har\'ard  1748,  a  school  teacher,  later  studied  law  with 
Judge  Chambers  Russell,  admitted  to  practice  1758,  Attomey-General 
1767. 

"  Bora  in  1731,  Harvard  1749,  became  a  minister,  later  admitted  to 
the  Bar  in  1759. 

'1  Bom  in  1719,  Yale  1740,  studied  law  with  Gen.  Phincas  L>Tnan. 

^  Bom  in  1724,  Yale  1742,  studied  for  the  ministry,  later  studied  law 
with  General  Lyman. 


COLONIAL  MASSACHUSETTS   BAR  83 

to  distinguish  themselves  —  John  Adams/  Josiah  Quincy, 
Jr.,-  Samuel  Quincy,^  Sampson  Salters  Blowers,^  Theophi- 
lus  Bradbury/'  William  Gushing/  Daniel  Leonard/  Theo- 
dore Sedgwick/  Caleb  Strong^  and  Francis  Dana.^° 

At  first,  no  special  qualifications  and  no  definite  term  of 
study  had  been  required  for  admission  to  the  Bar.  But, 
in  reality,  in  order  to  master  the  profession,  a  student  in 
the  Colonies  had  to  acquire  far  more  knowledge  than  a 
student  at  the  Inns  of  Court  in  London;  for  as  Gridley  said 
to  Adams  in  1758:" 

"A  lawyer  in  this  country  must  study  common  law  and 
civil  law  and  natural  law  and  admiralty  law  and  must  do 
the  duty  of  a  counsellor,  a  lawyer,  an  attorney,  a  soHcitor 
and  even  of  a  scrivener;  so  that  the  difficulties  of  the  pro- 
fession are  much  greater  here  than  in  England." 

As  early  as  1761,  the  Bar  had  formed  a  regular  associa- 
tion; and  had  prescribed  seven  years  of  probation — three  of 

*  Bom  in  1735,  Harvard  1755,  studied  law  with  Judge  James  Putnam, 
admitted  to  the  Bar  in  1758,  called  as  Barrister  1761. 

-  Born  in  1744,  Harvard  1763. 

'  Born  in  1735,  Harvard  1754,  studied  with  Benjamin  Pratt;  Solicitor- 
General  1767. 

*  Born  in  1742,  Harvard  1763,  studied  law  under  Governor  Hutchinson. 

*  Bom  in  1739,  Harvard  1757,  practised  law  in  IMaine  1761-1779, 
one  of  the  earliest  lawyers  there. 

5  Born  in  1732,  Harvard  1751,  studied  law  with  J.  Gridley,  was  the 
first  regular  educated  lawyer  to  settle  in  Maine,  1755,  Chief  Justice  of 
Massachusetts  1776. 

^  Born  in  1740,  Harvard  1760. 

'  Born  in  1746,  left  Yale  without  graduating  in  1765,  studied  for  the 
ministry,  admitted  to  the  Bar  in  1766. 

^  Born  in  1745,  Har\^ard  1764,  admitted  to  the  Bar  in  1772. 

1°  Born  in  1743,  Harvard  1762,  Chief  Justice  of  Massachusetts  1791- 
1806. 

"  John  Adams'  Life  and  Works,  Vol.  II,  p.  46. 

General  Gage  later  denounced  "this  country  where  every  man  studies 
law;"  and  in  176S  the  British  Attorney-General  said,  "Look  into  the  papers 
and  see  how  well  these  Americans  are  versed  in  Crown  Law." 


84  A  HISTORY  OF  THE  AMERICAN  BAR 

preliminary  study,  two  of  practise  as  attorney  in  the  Inferior 
Court,  and  two  of  practise  as  attorney  in  the  Superior 
Court.^  John  Adams,  noting  in  his  Diary,  July  28,  1766, 
the  Bar  meeting  for  the  admission  of  three  young  gentlemen, 
Mr.  Oliver,  Mr.  Quincy  and  Mr.  Blowers,  consoled  him- 
self for  the  ** swarming  and  multiplying"  of  lawyers,  by 
the  reflection  that  four  years  must  elapse  before  they  could 
assume  the  gown.  Adams  describes  as  follows  the  admis- 
sion to  practise  of  himself  and  Samuel  Quincy,  in  1758, 
their  sponsor  before  the  Court  being  Gridley,  the  Attorney- 
General  : 

"I  began  to  grow  uneasy,  expecting  that  Quincy  would 
be  sworn  and  I  have  no  patron,  when  Mr.  Gridley  made 
his  appearance,  and,  on  sight  of  me,  whispered  to  Mr. 
Pratt,  Dana,  Kent,  Thacher,  about  me.  Mr.  Pratt  said 
nobody  knew  me.  'Yes,'  says  Gridley,  'I  have  tried  him 
and  he  is  a  very  sensible  fellow!'  At  last  he  rose  up  and 
bowed  to  his  right  hand  and  said,  'Mr.  Quincy,'  when 
Quincy  rose  up;  then  he  bowed  to  me,  'Mr.  Adams,'  when 
I  walked  out. 

"  Mr.  Gridley  then  presented  the  young  candidates  to  the 
Court  wdth  the  following  remarks: 

"'  May  it  please  your  Honors,  I  have  two  young  gentle- 
men, Mr.  Quincy  and  Mr.  Adams,  to  present  for  the  oath  of 
an  attorney.  Of  Mr.  Quincy  it  is  sufficient  to  say  that  he 
has  lived  three  years  with  Mr.  Pratt;  of  Mr.  Adams,  as 
he  is  unknown  to  your  Honors,  it  is  necessary  to  say  that  he 
has  Hved  between  two  and  three  years  with  Mr.  Putnam 
of  Worcester,  has  a  good  character  from  him,  and  all  others 
who  know  him,  and  that  he  was  with  me  the  other  day 
several  hours,  and  I  take  it,  he  is  qualified  to  study  the  law 
by  his  scholarship,  and  that  he  has  made  a  very  consider- 
able, a  very  great  proficiency  in  the  principles  of  the  law, 
and  therefore,  that  the  clients'  interests  may  be  safely 
entrusted  in  his  hands,  I  therefore  recommend  him  with 
the  consent  of  the  Bar  to  your  Honors  for  the  oath.' 

'  Life  and  Works  of  John  Adams,  \o\.  II,  p.  197,  G.  Dexter,  Mass.  Hist. 
Sac.  Coll.,  Vol.  VI,  p.  145. 


COLONIAL  MASSACHUSETTS    BAR  85 

"Then  Mr.  Pratt  said  two  or  three  words  and  the  clerk 
was  ordered  to  swear  us;  after  the  oath,  Mr.  Gridley  took 
me  by  the  hand,  wished  me  much  joy,  and  recommended 
me  to  the  Bar.  I  shook  hands  with  the  Bar  and  received 
their  congratulations,  and  invited  them  over  to  Stone's 
to  drink  some  punch,  where  most  of  us  resorted,  and  had  a 
very  cheerful  chat." 

This  genial  relationship  between  the  seniors  and  juniors 
of  the  Bar  on  days  of  admission  was  preserved  for  some  time 
later.  Thus,  Prentiss  Mellen  (later  Chief  Justice  of  Maine), 
who  studied  with  Shearjashub  Bourne  at  Barnstable  and 
was  admitted  to  the  Pl>Tiiouth  Bar,  said  that: 

"According  to  the  fashion  of  that  day  on  the  great  occa- 
sion, I  treated  the  judges  and  all  the  lawyers  with  about  half 
a  pail  of  punch,  which  treating  aforesaid  was  commonly 
called  the  colt's  tail." 

In  1763,  Adams  writes  in  his  Diary  that  the  Bar  had 
agreed  ''that  nobody  should  answer  to  a  suit  but  the  plain- 
tiff himself  or  some  sworn  attorney,  and  that  a  general 
power  should  not  be  admitted;"  also  that  "no  attorney 
should  be  allowed  to  practise  in  the  Superior  or  Inferior 
Courts  unless  duly  sworn." 

About  1760,  Chief  Justice  Hutchinson,  by  a  rule  of  court, 
introduced  the  distinction  between  barristers  and  attorneys, 
and  provided  that  none  but  barristers  could  argue  in  the 
Superior  Court.  This  rule  was  not  always  enforced;  for 
Josiah  Quincy,  Jr.,  who  was  refused  to  admission  as  a  bar- 
rister, being  obnoxious  in  his  politics  to  the  ruling  powers, 
says  in  his  Reports  in  August,  1769: 

"At  the  last  sitting  of  the  Superior  Court  in  Charlestown 
I  argued  (for  the  first  time  in  this  court)  to  the  jury  though 
not  admitted  to  gown,  the  legality  and  propriety  of  which 
some  have  pretended  to  doubt;  but  as  no  scruples  of  that 
kind  disturbed  me,  I  proceeded  (maugre  any)  at  tliis  court 
to  manage  all  my  own  business,  (for  the  first  time  in  this 


86  A  HISTORY  OF  THE  AMERICAN  BAR 

countty)  though  unsanctified  and  uninspired  by  the  pomp 
and  magic  of  the  long  robe." 

By  rule  of  court,  three  years  of  practise  was  required  be- 
fore admission  as  a  barrister.  This  was  later  increased  to 
seven  years,  with  a  regular  grade  of  promotion  —  similar 
to  the  custom  of  England,  where  five  years'  residence  in  the 
Inns  of  Court  was  required,  and  three  years,  of  a  graduate 
of  Oxford  or  Cambridge. 

At  the  same  time,  Hutchinson  also  introduced  a  costume 
for  the  judges,  consisting  of  a  black  silk  gown,  worn  over  a 
full  black  suit,  white  bands,  and  a  silk  bag  for  the  hair. 
This  was  worn  by  the  judges  in  civil  causes  and  criminal 
trials,  excepting  those  for  capital  offences,  in  which  trials 
they  wore  scarlet  robes,^  with  black  velvet  collars  and  cuffs 
to  their  large  sleeves,  and  black  velvet  facings  to  their 
robes.  Of  such  importance  was  this  costume  that  Hutchin- 
son deemed  it  worthy  of  record  to  note  in  his  Diary,  after 
describing  the  riot  in  Boston  on  the  night  of  the  26th  of 
August,  1765,  when  all  his  plate,  family  pictures,  furniture, 
wearing  apparel,  and  the  books  and  manuscripts  which  he 
had  been  thirty  years  collecting,  were  destroyed  by  the  mob, 
that: 

"The  Superior  Court  was  to  be  held  the  next  morning 
in  Boston.  The  Chief  Justice  who  was  deprived  of  his 
robes  and  all  other  apparel,  except  an  undress  he  was  in 
when  the  mob  came,  appeared  in  that  undress  and  an 
ordinary  great  coat  over  it  which  he  borrowed."  ^ 

^  The  color  of  the  robes  may  remind  one  of  Cromwell's  remark,  "Well, 
if  I  cannot  rule  by  red  gowns,  I  will  rule  by  redcoats."  Campbell's  Lives 
of  the  Chief  Justices,  Vol.  II,  p.  187. 

2  Diary  and  Letters  of  Thomas  Hutchinson,  pp.  67,  69.  See  also  Life 
of  Thomas  Hutchinson,  by  James  K.  Hosmer,  p.  95.  "So  strict  was  Lord 
Eldon  (on  matters  of  dress)  that  I  remember  Wetherell,  when  Attorney- 
General,  having  forgot  the  full  bottom  wig  and  appeared  in  a  tie.  Lord 
Eldon  'regretted  that  his  Majesty's  Attorney-General  was  not  present  at 


COLONLVL  MASSACHUSETTS  BAR  87 

Soon  after  the  Revolution  this  costume  was  laid  aside,  it 
is  supposed,  because  it  was  not  suited  to  the  simplicity  of 
the  form  of  government,  and  the  last  appearance  of  the 
judges  in  gowns  was  at  the  funeral  of  Governor  Hancock  in 
October,  1793,  when  they  wore  black  silk.^ 

John  Adams,  writing  to  his  pupil,  William  Tudor,  says  of 
these  innovations: 

"I  pass  over  that  scenery  v;hich  he  introduced  so  showy 
and  so  shallow,  so  theatrical  and  so  ecclesiastical  of  scarlet 
and  sable  robes,  of  broad  bands  and  enormous  tie  wigs  more 
resembling  fleeces  of  painted  merino  wool  than  anything 
natural  to  man  and  that  could  breathe  with  him.  I  pass 
over  also  the  question  whether  he  or  his  court  had  legal 
authority  to  establish  a  distinction  between  barristers  and 
attorneys.  Innovations,  though  often  necessary,  are  always 
dangerous."  ^ 

It  appears  from  the  court  records  for  the  August  term, 
1762,  that  twenty-six  gentlemen  had  been  called  by  the 
court  to  be  barristers  at  law,  and  that  twelve  of  them  had 
appeared  in  barristers'  habits  —  black  silk  gown,  bands 
and  bag  wigs.^ 

By  1768,  the  order  of  barristers  was  so  well  recognized 
that  it  is  known  that  there  were  then  twenty-five.^    In  1770, 

the  bar,  as  the  interests  of  the  Crown  were  concerned.'  "  Life  of  Lord  Camp- 
bell, Vol.  I,  p.  793. 

^  William  Sullivan  in  his  Familiar  Letters  on  Public  Characters  (1847) 
says  that  "the  judges  had  up  to  this  time  (1793)  worn  robes  of  scarlet 
faced  with  black  velvet  in  winter,  and  black  silk  gowns  in  summer." 

2  Adams'  Life  and  Works,  Vol.  X,  p.  233,  Vol.  II,  p.  133.  G.  Dexter,  in 
Mass.  Hist.  Sac.  Proc,  Vol.  XIX,  p.  144. 

'  See  Life  of  James  Otis,  — Amer.  Law  Rev.,  Vol.  I,  541. 

*  Of  these  twenty-five,  eleven  were  in  Suffolk,  Richard  Dana,  Benjamin 
Kent,  James  Otis,  Jr.,  Samuel  Fitch,  William  Read,  Samuel  Swift,  Benjamin 
Gridley,  Samuel  Quincy,  Robert  Auchmuty  and  Andrew  Cazneau,  of 
Boston,  and  John  Adams  of  Braintrce;  five  were  in  Essex,  Daniel 
Famham  and  John  Lowell,  of  Newburj-port,  William  P>Tichon,  of  Salem, 
John  Chipman,  of  !Marblehead,  and  Nathaniel  Peaselee  Sergeant,  of  Haver- 


88  A  HISTORY  OF  THE  AMERICAN  BAR 

a  new  Bar  Association  was  formed  in  Boston;  and  several 
of  the  other  counties,  notably  Essex,  had  similar  associa- 
tions, of  great  ability. 

NOTE 

For  authorities  in  general,  see: 

Courts  of  Justice  in  the  Province  of  Massachusetts  Bay,  1630- 
1684  —  Amer.  Law  Rev.,  Vol.  XXXIV,  1902. 

Judicial  Action  by  the  Provincial  Legislature  of  Massachusetts 
Bay  —  Columbia  Law  Rev.,  Vol.  II,  1902. 

Local  Law  in  Massachusetts  and  Connecticut,  by  W.  C.  Fowler. 

The  Colonial  Laws  of  Massachusetts,  by  W.  H.  Whitmore  (1889). 

Judicial  History  of  Massachusetts,  by  Emory  Washburn  (1840). 

Plymouth  Colony  Laivs. 

Massachusetts  Colonial  Records. 

Records  of  the  Courts  of  Assistants,  edited  by  John  Noble  (1901). 

Plaine  Dealing,  or  News  from  New  England,  by  Thomas  Lech- 
ford  (1642). 

hill;  one  was  in  Middlesex,  Jonathan  Sewall;  two  in  Worcester,  James 
Putnam,  of  Worcester,  and  ABel  Willard,  of  Lancaster;  three  in  Bristol, 
Samuel  WTiite  and  Robert  Treat  Paine,  of  Taunton,  and  Daniel  Leonard,  of 
Norton;  in  Hampshire,  John  Worthington,  of  Springfield;  in  Plymouth, 
James  Hovey  and  Pelham  Winslow. 

After  1768,  the  following  barristers  were  called:  Joseph  Hawley,  of 
Northampton,  David  Sewall,  of  York,  Moses  Bliss,  of  Springfield,  Zepha- 
niah  Leonard,  of  Taunton,  Theophilus  Bradbury,  of  Falmouth  (Portland), 
David  Wyer,  of  Falmouth,  Mark  Hopkins,  of  Great  Barrington,  Simeon 
Strong,  of  Amherst,  John  Sullivan,  of  Durham,  Daniel  Oliver,  of  Hardwick, 
Francis  Dana,  of  Cambridge,  Sampson  Salter  Blowers,  of  Boston,  Daniel 
BHss,  of  Concord,  Samuel  Porter,  of  Salem,  Joshua  Upham,  of  Brookfield, 
Shearjashub  Bourne,  of  Barnstable,  James  Sullivan,  of  Biddeford,  Jeremiah 
D.  Rogers,  of  Littleton,  Oaks  Angier,  of  Bridgewater,  John  Sprague,  of 
Lancaster,  Caleb  Strong,  of  Northampton,  Elisha  Porter,  of  Hadley, 
Theodore  Sedgwick,  of  SheflBeld,  Benjamin  Hichbom,  of  Boston,  Theophi- 
lus Parsons,  of  Newburyport,  Jonathan  Bliss,  of  Springfield,  William 
Tudor,  Perez  Morton  and  William  Wetmore  of  Boston,  and  Levi  Lincoln, 
of  Worcester. 

See,  for  particularly  good  account  of  the  Hampshire  and  Hampshire 
and  Hampden  County  Bars,  Address  of  George  Bliss,  Sept.  26,  1826. 


COLONIAL  MASSACHUSETTS  BAR  89 

Emancipation  of  Massachusetts,  by  Brooks  Adams  (1887). 

History  oj  New  England,  by  John  Winthrop, 

History  of  New  England,  by  John  G.  Palfrey  (1858). 

Address  on  Origin  of  the  Legal  Profession  in  Massachusetts, 

by  William  Sullivan  (1826). 
Three  Episodes  of  Massachusetts  History,  by  C.  F.  Adams  (1892). 
Judicial  History  of  New  England,  by  Conrad  Reno  (1900). 
History  of  the  Judiciary  of  Massachusetts,  by  William  T.  Da\-i3 

(1900). 
Address  to  Worcester  County  Bar,  Oct.  2,  1829,  by  Joseph  Willard. 
Judicial  History  of  Massachusetts,  by  Albert  Mason,  in  The 

New  England  States  (1897). 
Attorneys  and  their  Admission  to  the  Bar  in  Massachusetts,  by 

Hollis  R.  Bailey  (1907). 
Courts  of  Chancery  in  the  American  Colonies,  by  Solon  D.  Wilson, 

Amer.  Law  Rev.,  Vol.  XVIII  (1884.) 


CHAPTER  IV 

COLONLA.L   NEW   YORK,    PENNSYLVAISTA   AND   NEW 

JERSEY  BAR 

New  York,  like  Virginia,  adopted  the  Common  Law  of 
England  as  the  basis  of  its  law  at  a  very  early  date;  but  as 
in  Virginia  also,  this  did  not  lead  to  the  early  development 
of  any  trained  Bar.  There  were  two  very  strong  obstacles 
to  success  in  the  legal  profession  —  the  supremacy  of  the 
merchant  and  land-holding  class,  who  deplored  the  rise  of 
any  other  influential  body  of  men  ;  and  the  constant 
interference  in,  and  control  of,  litigation  by  the  Royal 
Governors. 

When  the  Dutch  Colony  of  New  Amsterdam  became 
"New  Yorck,"  upon  the  English  conquest  in  1664,  a  code  of 
law  and  practise,  known  as  the  Duke's  Laws,  was  pro- 
mulgated in  1665  as  the  basis  of  its  government.^  This 
code  was  largely  prepared  by  Mathias  Nichols,  an  Enghsh 
barrister  of  Lincoln's  Inn,  partly,  it  is  said,  from  sugges- 
tions made  by  Lord  Chancellor  Clarendon,  but  chiefly 
from  the  Dutch  Colonial  law  and  the  local  laws  in  force  in 
the  New  England  Colonies.  It  gave  to  New  York  a  more 
elaborate  system  of  courts  than  was  to  be  found  in  most  of 
the  other  Colonies,  and  fixed  with  great  detail  their  organ- 
ization and  administration. 

*  In  1673,  the  Dutch  again  conquered  New  York,  and  reverted  at  once 
to  their  old  laws;  but  when  Sir  Edmund  Andros  returned  in  1674  to  reclaim 
the  English  rule,  he,  as  Governor,  restored  to  New  York,  by  proclamation, 
the  "known  books  of  laws  formerly  establisht." 


COLONIAL   BAR  OF  NEW  YORK  91 

It  Is  evident  from  many  contemporary  writings  that  the 
Common  Law  received  very  early  recognition,  and  the 
best  statement  as  to  its  status  in  New  York  is  that  made 
by  Judge  Horsmanden  in  the  case  of  Forsey  v.  Cunningham, 
in  1765: 

"The  Supreme  Court  here  proceeds  in  the  main  according 
to  the  practice  of  the  courts  at  Westminster;  and  the 
Common  Law  of  England,  with  the  statutes  affirming  or 
altering  it  before  a  legislature  was  estabHshed,  and  those 
passed  since  such  establishment  expressly  extended  to  us 
without  legislative  acts  (which  are  not  to  be  repugnant  to 
the  laws  of  England)  constitute  the  law  of  this  Colony."  ^ 

In  1683,  a  Charter  of  Liberties,  containing  many  of  the 
provisions  of  Magna  Charta  and  of  Habeas  Corpus  Act 
was  framed  expressly  for  the  Colony  by  the  Duke  of  York, 
and  though  never  assented  to  by  the  King,  was  always 
claimed  by  the  colonists  to  be  operative  for  their  protection. 

The  early  courts  were  those  of  the  small  local  justices  of 
the  peace,  sitting  in  Courts  of  Sessions,  and  the  Court  of 
Assizes  consisting  of  the  Sessions  Justices  and  the  Governor 
and  Council.  This  latter  Court  not  only  had  full  law  and 
equity  jurisdiction,  but  also  exercised  legislative  powers. 

In  1683,  the  first  New  York  Legislature  established 
distinct  Courts  of  Sessions  for  each  county,  a  Court  of  Oyer 
and  Terminer  together  with  other  minor  courts,  and  a 
Supreme  Court  consisting  of  the  Governor  and  Council. 

In  169 1,  the  Supreme  Court  of  Judicature  was  established, 
consisting  of  a  Chief  Justice  and  four  associate  judges,  all 
appointed  by  the  Royal  Governors.'^ 

The  privilege  of  a  Court  Leet  and  Court  Baron  also  was 

*  See  reported  case  in  N.  Y.  Hist.  Soc.  Collections. 

2  It  is  a  curious  fact  that  just  at  the  time  when  Courts  of  Pypowdry 
(Market  Courts)  were  dying  out  in  England,  they  were  revived  in  New 
York  in  1692,  and  as  late  as  1773  were  extended  to  the  new  counties. 


92  A  HISTORY  OF  THE  AMERICAN  BAR 

attached  to  many  of  the  old  manor  holding  families,  such~ 
as  the  Livingstones,  Van  Rensselaers,  Courtlandts,  Philips 
and  Beekmans. 

As  in  the  other  Colonies,  few  of  the  judges,  other  than  the 
Chief  Justices,  were  men  of  legal  training.  The  first  Chief 
Justice,  Joseph  Dudley,  who  four  years  previously  had  been 
Chief  Justice  of  Massachusetts,  had  been  educated  as  a 
clerg>Tnan,  had  then  entered  on  a  political  career,  and  had 
no  legal  education.  Two  other  early  Chief  Justices  were 
men  of  Httle  legal  note  —  Stephen  Van  Cortlandt  in  1700, 
and  Abraham  De  Peyster  in  1701.  WilHam  Smith,  Chief 
Justice  from  1692  to  1700  and  again  in  1702,  was  on  the 
other  hand  the  leading  lawyer  of  the  Province.^  William 
Atwood,  Chief  Justice  in  1701,  and  John  Bridges,  in  1703, 
were  English  lawyers  of  distinction,  as  was  Roger  Mompes- 
son,  in  1704.  Of  Lewis  Morris,  who  was  Chief  Justice  from 
17 1 5  to  1733,  it  was  said  that  "no  man  in  the  Colony 
equalled  him  in  the  knowledge  of  the  law."  His  successor, 
Lieutenant-Governor  James  DeLancey,  was  a  barrister 
of  the  Inner  Temple,  but  of  little  profundity  in  legal 
acquirements. 

From  1 76 1  to  1763,  the  distinguished  Massachusetts 
lawyer  and  Harvard  graduate,  Benjamin  Pratt,  was  Chief 
Justice,  of  whom  Lieutenant-Governor  Colden  wrote  in 
1762,  after  speaking  of  the  insufficient  salary  paid  to  the 
judges : 

''Sure  I  am,  men  of  greater  abihties  may  be  found  out 
of  this  Province  than  in  it.  .  .  . 

"Mr.  Pratt  has  come  to  this  place  with  the  best  char- 
acter as  to  his  skill  in  the  law  and  integrity.  He  was  at 
the  top  of  his  profession  at  Boston.  He  has  left  a  beneficial 
practice  and  now  lives  at  the  expense  of  his  private  fortune 

1  He  came  to  New  York  about  1686,  and  is  to  be  distinguished  from 
William  Smith,  the  leader  of  the  Bar  of  a  later  period. 


COLONIAL  BAR  OF  NEW  YORK  93 

to  show  his  regard  to  the  honour  His  Majesty  has  done  him 
in  appointing  him  Chief  Justice  of  this  Province."  ^ 

From  1763  to  1778,  Daniel  Horsmanden,  a  very  inferior 
lawyer,  filled  the  position. 

One  of  the  chief  obstacles  to  the  maintenance  of  an 
adequate  judiciary  was  the  long  struggle  during  the  middle 
of  the  Eighteenth  Century  between  the  Royal  Governors 
and  the  Assembly,  the  former  insisting  on  their  right  to 
appoint  judges  "during  His  Majesty's  pleasure,"  the 
Assembly  insisting  on  appointments  of  judges  "during  good 
behaviour,"  and  refusing  to  vote  the  judicial  salaries  until 
the  Governor  should  acquiesce  in  this  right.  The  result 
was  great  difficulty  in  finding  men  to  fill  positions  on  the 
bench. 

Chief  Justice  Pratt  complained  to  the  Lords  of  Trade, 
May  24,  1762: 

"All  the  Colonies  are  vested  with  legislative  powers,  by 
which  the  systems  of  their  laws  are  gradually  varying  from 
the  Common  Law  and  so  diminishing  in  that  respect 
their  connection  with  the  Mother  Country;  and  if  the 
judgments  of  the  Supreme  Executive  Courts  are  only  vague 
and  desultory  decisions  of  ignorant  judges  it  must  augment 
the  mischief;  and  this  cannot  be  guarded  against  without 
some  such  establishment  for  the  King's  judge  as  to  render 
the  office  worth  a  lawyer's  acceptance." 

Such  was  the  Colonial  antagonism  towards  the  King's 
officers  in  New  York  that  the  position  of  Attorney-General 
was  also  filled  by  inferior  men:  and  Colden  wrote  to  Eng- 
land, January  25,  1762: 

"The  Attorney-General's  office  for  upwards  thirty  years 
past,  has  been  filled  with  men  of  no  esteem  as  to  their 
skill  in  the  law.  Formerly,  and  I  believe  everwhere  else, 
when  a  gentleman  came  to  the  office  of  Attorney-General,  it 

^  Colonial  Documents  of  New  York,  Vol.  VII,  letter  Jan.  11,  1762. 


94  A  HISTORY  OF  THE  AMERICAN  BAR 

gave  such  reputation  to  his  character,  that  he  was  thereby 
introduced  into  a  great  share  of  practise  in  suits  between 
private  persons;  but  for  some  time  past  we  find  no  man 
entrusting  his  private  affairs  to  the  person  with  whom  the 
ELing's  rights  in  the  Province  are  entrusted." 

The  first  lawyer  of  New  Amsterdam  was  Dirck  Van 
Schelluyne,  in  1653.  He  had  obtained  in  Holland  a 
license  to  practise,  but,  there  being  no  other  lawyers  in  the 
new  city  to  fight,  and  consequently  no  suits,  he  performed 
the  duties  of  notary,  kept  a  grocery  store,  and  finally, 
becoming  discouraged,  left  the  city. 

In  the  early  days  of  the  English  occupation,  the  estima- 
tion in  which  lawyers  were  held  will  appear  from  the  fol- 
lowing entry  on  the  minutes  of  the  Council,  held  at  the 
Stadt  Huys  on  May  16,  1677: 

"  Query?  Whether  attorneys  are  thought  to  be  useful 
to  plead  in  courts  or  not.  Answer.  It  is  thought  not. 
Whereupon  resolved  and  ordered,  That  pleading  attorneys 
be  no  longer  allowed  to  practise  in  ye  Government,  but 
for  ye  pending  cases." 

This  was  later  modified,  and  the  Court  in  1677  made  a 
rule  that: 

"  No  one  be  admitted  to  plead  for  any  other  person  or  as 
attorney  in  court  without  hee  first  have  his  admittance  of 
the  court  or  have  a  warrant  of  attorney  for  his  so  doing 
from  his  clyent." 

It  was  many  years,  however,  before  there  existed  any 
trained  Bar. 

While  the  records  of  the  Assize  Court  give  the  names  of  a 
number  of  "attorneys"  appearing  for  the  parties,  it  is  not 
likely  that  they  were  men  who  made  practise  of  the  law  an 
exclusive  profession,  but  rather  agents  and  men  of  business 
who  were  clever  at  writing  and  speaking,  and  so  employed 
by  others  to  represent  them  in  the  courts.     It  is  certain, 


COLONL\L  BAR  OF  NEW  YORK  95 

however,  that  there  was  no  such  great  popular  prejudice 
against  lawyers  in  New  York  as  in  the  other  Colonies; 
although,  in  1683,  the  same  legislation  was  passed  as  else- 
where, forbidding  sheriffs,  constables,  clerks  and  justices 
of  the  peace  from  acting  as  attorneys  in  their  courts.  A 
few  English  lawyers  of  distinction  practised  in  the  Colony 
between  16S0  and  1700  —  James  Graham,  John  Palmer  and 
Thomas  Rudyard;  but  the  scarcity  of  lawyers  made  it  so 
easy  for  a  party  to  a  suit  to  monopolize  the  Bar,  that,  in 
1695,  a  statute  was  passed  which  recited  that,  "whereas 
the  number  of  attorneys  at  law  that  practise  at  the  Bar  in 
this  Province  are  but  few  and  that  many  persons  retain 
most  of  them  on  one  side  to  the  great  prejudice  and  dis- 
couragement of  others  that  have  or  may  have  suits  at  law," 
and  which  provided  that  no  person  should  retain  more  than 
two  attorneys  in  any  suit  —  this  act  to  continue  in  force  for 
two  years. 

In  the  account,  published  in  1744  by  Daniel  Horsmanden, 
of  the  famous  Negro  Plot  case  in  1741,  it  is  stated  that  the 
whole  Bar  of  the  city,  consisting  of  eight  members  only, 
Attorney-General  Bradley  and  Messrs.  Murray,  Alexander, 
Smith,  Chambers,  Nichols,  Lodge  and  Jameson,  offered 
their  services  to  the  prosecution  "as  a  matter  affecting  not 
only  the  city  but  the  whole  Province." 

The  chief  lawyers  of  distinction  in  the  early  Eighteenth 
Century  were  James  Alexander,^  William  Smith,^  John 
Tudor  and  David  Jamieson. 

From  an  early  date,  the  power  of  appointment  of  attor- 
neys was  exercised  by  the  Governor;  and  the  first  license  to 
an  attorney  bears  date  of  1709.     W.  Smith,  Jr.,  in  his  con- 

^  Born  about  1691,  came  to  New  York  in  1715,  studied  law  after  his 
arrival,  Attorney-General  1721-1723,  and  "though  no  speaker,  was  at  the 
head  of  his  profession;  for  sagacity  and  business  penetration  and  in  applica- 
tion to  business  no  man  could  surpass  him." 

'  Bom  in  1697,  came  to  New  York  in  1715. 


96  A  HISTORY  OF  THE  AMERICAN  BAR 

temporary  history,  laments  that  the  Governors  at  times 
licensed  all  applicants,  "  however  indifferently  soever  rec- 
ommended," though  sometimes  they  took  advice  of  the 
Chief  Justices.  The  smallness  of  the  Colonial  Bar  is  shown 
by  the  fact  that  in  the  sixty-eight  years  between  1709  and 
1776  only  one  hundred  and  thirty-six  had  been  Hcensed 
as  attorneys  by  the  Governor.^ 

Valentine,  in  his  History  of  the  City  of  New  York,  gives  a 
list  of  only  forty-one  lawyers  practising  in  the  city  between 
1695  and  1769.^ 

1  It  is  interesting  to  note  that  the  last  license  in  the  Book  of  Commissions, 
signed  by  the  Royal  Governor  Tr>'on,  is  under  date  of  March  11,  1776,  and 
that  on  the  very  next  page  the  "  People  of  the  State  of  New  York,  by  the 
Grace  of  God  free  and  independent,"  make  their  first  appointment  of  a 
Secretary  of  State.     See  In  the  matter  of  Cooper,  22  N.  Y.  67. 

«  History  of  the  City  of  New  York,  by  David  T.  Valentine  (1853),  Clerk 
of  Common  Council. 

Names  of  Attorneys  practising  in  the  City  of  New  York  between  the 
year  1695  and  the  Revolutionary  War. 

1697  David  Jamison,  "Gentleman" 

1698  James  Emott,  "Gent,  and  Atty  at  Law" 

1 70 1  Thomas  Weaver  Esq. 

1702  John  Bridges  "LL.D.  on  suit  of  Gov.  Combury" 
Robert  Milwood 

1708  May  Bickley 

Jacob  Regnier 

Roger  Mompesson 
1718  Tobias  Boel 
1728  Joseph  Murray 

John  Chambers 
1730  Abraham  Lodge 

Richard  Nicholls 

James  Alexander 

William  Smith 
1740  Daniel  Horsmanden 
1743  Lancaster  Graen 

1745  Elisha  Parker 
John  Burnet 
Samuel  Clowes 

1746  William  Searle 


COLONIAL  BAR  OF  NEW  YORK  97 

These  few  men,  however,  formed,  as  Chancellor  Kent 
later  said,  "a  constellation  of  learned  and  accomplished 
men."  '  Chief  among  them  were  William  Livingston,  who 
was  born  in  1723,  a  Yale  graduate  of  1741,  studied  law  with 
James  Alexander  in  1745,  later  with  William  Smith,  and 
in  1752  collected  and  pubUshed  the  first  digest  of  Colony 
laws;  and  William  Smith,  Jr.,  from  whose  personal  recol- 
lections most  of  New  York's  early  history  is  now  known, 
born  in  1728,  a  Yale  graduate  of  1745.  Among  others  were 
Whitehead  Hicks,^  John  Tabor  Kempe,  the  last  Royal 
Attorney-General;  Benjamin  Kissam;  Peter  Van  Schaack, 
Recorder  of  New  York  and  editor  of  the  revision  of  the 
statutes  in  1774;^  John  Morin  Scott  ;^   Samuel  Jones,  Re- 

1747  John  McEvers  Jr. 
John  Van  Cortlandt 

1748  Bartholomew  Crannell 
William  Livingston 

1749  John  Alsop 

1 75 1  Augustus  Van  Cortlandt 

Lambert  Moore 
1763  Whitehead  Hicks 

1768  Benjamin  Kissam 
Benjamin  Helme 
Rudolphus  Ritzema 
John  McKesson 

1769  Richard  Harrison 
Philip  Livingston  Jr. 
Thomas  Jones 
Philip  J.  Livingston 
John  William  Smith 
John  D.  Crimshire 
David  Mathews 
Samuel  Jones 

*  See  Address  before  the  Law  Association  of  the  City  of  New  York, 
by  James  Kent  (1836). 

-  Born  in  1728,  Judge  of  Supreme  Court  1776-1780. 

*  Bom    in    1747,  a    Columbia    graduate    of    1768,   studied    with  W. 
Smith,  Jr. 

*  Bom  in  1730,  a  Yale  graduate  of  1746. 


98  A  HISTORY  OF  THE  AMERICAN  BAR 

corder;  Benjamin  Nicoll;  George  Clinton;  ^  James  Duane;  ^ 
Robert  Yates,^  and  John  Jay.^  Though  small  in  numbers, 
the  Bar  of  New  York  formed  the  earHest  Bar  Association 
in  the  Colonies,  such  an  organization  being  in  existence 
there  as  early  as  1748.  While  professional  practise  was 
scanty,  and  as  Sedgwick  said,  in  his  Life  oj  William 
Livingston : 

"the  great  number  of  cases  were  collection  of  debts 
owed  by  EngUsh  merchants  and  suits  in  ejectment  —  which 
does  much  to  diminish  any  regret  which  may  be  felt  for 
the  want  of  colonial  reports," 

yet  the  influence  of  the  legal  profession  upon  the  develop- 
ment of  New  York's  legal  and  poHtical  institutions  was  very 
great.  Of  this  powerful  status  of  the  Colonial  Bar  during 
the  fifteen  years  prior  to  the  Revolution  a  very  clear 
picture  has  been  preserved  in  the  letters  of  Lieutenant- 
Governor  Colden,  between  whom  and  the  united  Bar  a 
heated  struggle  had  taken  place  from  1763  to  1765, 
over  Colden's  attempt  to  force  the  courts  to  allow  an  ap- 
peal to  the  Governor  and  Council  on  matters  of  fact  as  well 
as  of  law.  This  conflict  ended  in  a  victory  for  the  Colonial 
contention  against  such  an  appeal,  and  this  result  con- 
firmed Colden  in  his  opinion  of  the  great  dangers  to  the 
Crown  and  to  the  Colony  itself  from  this  "domination  of 
lawyers,"  and  from  the  "dangerous  influence  of  the  pro- 
prietors of  large  tracts  of  land  in  the  Colony,"  who  com- 
bined with  them  to  antagonize  the  Crown. 
September  14,  1763,  he  wrote: 

*  Born  in  1739,  studied  in  office  of  W.  Smith,  Governor  of  New  York 
1777-1795,  1801;  Vice-President  1804. 

2  Bom  in  1733,  U.  S.  District  Judge  1789. 
^  Bom  in  1738,  studied  with  W.  Livingston. 

*  Bom  in  1745,  a  Columbia  graduate  of  1764,  studied  with  Benjamin 
Kissam,  admitted  to  the  Bar  in  1766  —  see  infra. 


COLONLVL  BAR  OF  NEW  YORK  99 

"We  have  a  set  of  lawyers  in  this  Province  as  insolent 
and  petulant  and  at  the  same  time  as  well  skilled  in  the 
chicaneries  of  the  Law  as  perhaps  are  to  be  found  anywhere 
else.  This  requires  judges  of  abihty  and  skill  in  the  law 
to  restrain  them,  who  are  not  easily  to  be  found  in  this  place, 
and  at  the  same  time  disinterested;  for  the  distinguished 
families  in  so  small  a  country  as  this  are  so  united  by  inter- 
marriages and  otherwise,  that  in  few  cases,  a  cause  of  any 
consequence,  especially  where  the  King's  Rights  are  con- 
cerned, can  be  brought  before  a  judge  who  is  one  of  these 
families  in  which  he  can  be  supposed  entirely  disinterested, 
or  free  from  connections  with  those  interested  either  in  that 
case  or  in  other  cases  similar  to  it." 

Again,  on  November  7,  1764,  he  wrote: 

"In  a  young  country  like  this,  where  few  men  have  any 
acquired  learning  or  knowledge,  where  the  judges  and 
principal  lawyers  are  proprietors  of  extravagant  grants  of 
land  or  strongly  connected  with  them  in  interest  or  family 
alliances,  it  is  possible  that  a  dangerous  combination  may 
subsist  between  the  Bench  and  the  Bar,  not  only  greatly 
injurious  to  private  property,  but  likewise  dangerous  to  his 
ISIajesty's  prerogative  and  authority  and  his  Rights  —  in 
this  Province,  in  case  no  appeals  as  to  the  merits  of  the 
cause  be  allowed  to  the  King  in  his  Privy  Council." 

On  January  22,  1765,  he  wrote: 

"If  the  profession  of  the  law  keep  united  as  they  are  now, 
the  abilities  of  an  upright  judge  will  not  be  sufficient  to 
restrain  the  lawyers,  without  the  security  of  an  appeal  to 
a  court  where  they  can  have  no  undue  influence.  The  law- 
yers influence  every  branch  of  our  Government,  a  domina- 
tion as  destructive  of  Justice  as  the  domination  of  Priests 
was  of  the  Gospel;  both  of  them  founded  on  delusion." 

And  on  February  22,  1765,  he  wrote  to  the  Earl  of 
Halifax: 

"The  dangerous  influence  which  the  Profession  of  the  Law 
has  obtained  in  this  Province  more  than  in  any  other  part 
of  his  Majesty's  Dominions  is  a  principal  cause  of  disputing 


loo  A  HISTORY  OF  THE  AMERICAN  BAR 

appeals  to  the  King,  but  as  that  influence  likewise  extends 
to  every  part  of  the  administration,  I  humbly  conceive 
that  it  is  become  a  matter  of  State  which  may  deserve 
your  Lordship's  particular  attention. 

"After  Mr.  DeLancey  had,  by  cajoHng  Mr.  Clinton, 
received  the  Commission  of  Chief  Justice  during  good 
behaviour,  the  Profession  of  the  Law  entered  into  an  Associ- 
ation the  effects  of  which  I  believe  your  Lordship  had  for- 
merly opportunity  of  observing  some  striking  instances. 
They  proposed  nothing  less  to  themselves  than  to  obtain 
the  direction  of  all  the  measures  of  Government  by  making 
themselves  absolutely  necessary  to  every  Governor,  in  as- 
sisting him  while  he  compHed  with  their  measures,  and 
by  distressing  him  when  he  did  otherwise.  For  this  pur- 
pose, every  method  was  taken  to  aggrandize  the  power  of 
the  Assembly  where  the  profession  of  the  law  must  all^ase 
have  great  influence  over  the  members  and  to  lessen  the 
authority  and  influence  of  the  Governor.  In  a  country  like 
this,  where  few  men,  except  in  the  profession  of  the  law, 
have  any  kind  of  literature,  where  the  most  opulent  fami- 
lies in  our  own  memory,  have  arisen  from  the  lowest  rank 
of  the  people,  such  an  association  must  have  more  influence 
than  can  be  easily  imagined.  By  means  of  their  profession 
they  become  generally  acquainted  with  men's  private  af- 
fairs and  necessities,  every  man  who  knows  their  influence 
in  the  courts  of  justice  is  desirous  of  their  favor  and  affrayd 
of  their  resentment.  Their  power  is  greatly  strengthened 
by  inlarging  the  powers  of  the  popular  side  of  government 
and  by  depreciating  the  powers  of  the  Crown. 

"The  Proprietors  of  the  great  tracts  of  land  in  this  Prov- 
ince have  united  strongly  with  the  lawyers  as  the  surest 
support  of  their  enormous  and  iniquitous  claims  and 
thereby  this  faction  is  become  the  more  formidable  and 
dangerous  to  good  government.  .  .  . 

"All  Associations  are  dangerous  to  good  government, 
more  so  in  distant  dominions;  and  associations  of  lawyers 
the  most  dangerous  of  any,  next  to  military. 

"Were  the  people  freed  from  the  dread  of  this  Domina- 
tion of  the  Lawyers,  I  flatter  myself  with  giving  general  joy 
to  the  people  of  the  Province." 


COLONIAL   BAR  OF   PENNSYLVANIA  xoi 

In  spite  of  the  attacks  upon  it  by  the  Governor,  the 
Association  of  the  Bar  continued  to  act  with  undiminished 
vigor,  and  in  1765  it  was  largely  the  originator  and  mainstay 
of  the  determined  and  successful  resistance  to  the  Stamp 
Act,  in  New  York.'  Shortly  after  this,  the  Association 
went  out  of  existence  as  an  organized  body;  but  the 
individual  lawyers  of  the  day  continued  to  be  leaders  in 
the  struggle  for  the  rights  of  the  Colony  which  resulted  in 
the  Revolution. 

Pennsylvania 

Until  about  the  middle  of  the  Eighteenth  Century,  the 
development  of  law  in  Pennsylvania  was  extremely  rudi- 
mentary. Its  settlers  were  active  in  their  opposition  to  the 
introduction  of  the  legal  subtleties  of  the  English  Bar  and 
the  legal  procedure  and  processes  of  the  English  Bench. 

William  Penn,  the  Proprietor,  certainly  had  no  reason 
to  love  the  Enghsh  courts,  for  English  judges  had  cast 
aside  all  bounds  of  decency  and  legal  principle  in  connection 
with  Penn's  trial  on  an  indictment  for  "tumultuous  assem- 
bly" in  1670.  Penn's  famous  comment  on  the  Common 
Law  uttered  in  this  case  is  well  known;  and  the  following 
colloquy  between  the  presiding  judge  in  the  Old  Bailey  and 
the  stout-hearted  Quaker  well  illustrates  the  reason  for  the 
popular  resentment  towards  the  English  law  as  administered 
in  criminal  cases  in  the  Seventeenth  Century:  ^ 

"Penn.  I  desire  you  would  let  me  know  by  what  law  it 
is  you  prosecute  me  and  upon  what  law  you  ground  my 
indictment. 

"Recorder.     Upon  the  common-law. 

*  Sir  William  Johnson  wrote  to  England  from  New  York  that  the  law- 
yers' opposition  to  the  Stamp  Act  was  for  fear  that  "  business  must  decrease 
from  the  duties  on  Law  Proceedings." 

2  See  6  Hffweirs  Stale  Trials,  953  et  seq. 


I02  A  HISTORY  OF  THE  AMERICAN  BAR 

"Penn.     Where  is  that  common-law? 

"Recorder.  You  must  think  that  I  am  able  to  run  up  so 
many  years  and  over  so  many  adjudged  cases  which  we  call 
common-law,  to  answer  your  curiosity. 

"  Penn.  This  answer  I  am  sure  is  very  short  of  many 
questions,  for  if  it  be  common,  it  should  not  be  hard  to 
produce.  .  .  .  Unless  you  shew  me  and  the  people  the  law 
you  ground  your  indictment  upon,  I  shall  take  it  for 
granted  your  proceedings  are  merely  arbitrary. 

"Recorder.  The  question  is  whether  you  are  guilty  of 
this  indictment. 

"  Penn.  The  question  is  not  whether  I  am  guilty  of  this 
indictment,  but  whether  this  indictment  be  legal.  It  is 
too  general  and  imperfect  an  answer  to  say  it  is  the  common 
law,  unless  we  knew  both  where  and  what  it  is.  For  where 
there  is  no  law,  there  is  no  transgression;  and  that  law 
which  is  not  in  being  is  so  far  from  being  common,  that  it 
is  no  law  at  all. 

"  Recorder.  You  are  an  impertinent  fellow,  will  you 
teach  the  court  what  law  is?  It  is  'Lex  non  scripta,' 
that  which  many  have  studied  thirty  or  forty  years  to 
know ;  and  would  you  have  me  to  tell  you  in  a  moment? 

"Penn.  Certainly,  if  the  common  law  be  so  hard  to  be 
understood,  it  is  far  from  being  very  common;  but  if  the 
Lord  Coke  in  his  Institute  be  of  any  consideration,  he 
tells  us  that  Common  Law  is  common  right,  and  that 
Common  Right  is  the  Great  Charter  Privileges." 

The  Quakers  who  sought  in  Pennsylvania  relief  from  such 
tyranny  of  English  judges  were  unlikely  to  welcome  any 
efforts  to  establish  the  lawcraft  in  power  in  their  new 
home.  It  is  not  strange,  therefore,  that  for  seventy  years 
after  the  settlement,  the  courts  of  the  Province  were 
maintained  with  practically  no  lawyers  present,  either  on 
the  Bench  or  at  the  Bar. 

Nevertheless  the  early  founders  and  Penn  himself  were 
too  able  administrators  to  conceive  that  the  new  Province 
could  exist  without  laws  at  all;  and  it  was  due  largely  to 


COLONIAL   BAR  OF  PENNSYLVANIA  103 

Penn  that  Pennsylvania  had  from  the  beginning  a  very 
full  and  well  settled  code  of  written  law,  consisting  of 
the  "Frame  of  Law"  agreed  upon  in  England,  in  1682,  the 
" Great  Law"  or  "Body  of  Law"  enacted  at  Chester  in  the 
same  year,  the  "Act  of  Settlement"  passed  in  Philadelphia 
in  1683,  and  eight  chapters  of  statutes  enacted  the  same 
year,  the  "Frame  of  Government"  in  1683  and  1696,  and 
the  laws  of  1701.  These  codes  embodied  a  complete  sys- 
tem and  rendered  more  elaborate  legislation  unnecessary 
for  a  long  time. 

The  colonists,  however,  were  extremely  independent  in 
their  attitude  towards  the  Common  Law  of  England. 
While  they  claimed  the  advantage  of  all  rights  and  privileges 
of  Englishmen  guaranteed  by  that  law,  and  while  Penn 
published  at  Philadelphia,  as  early  as  1687,  an  edition  of  the 
Magna  CJmrta,  of  the  Confirmation  of  the  Charters,  and  of 
the  Statute  De  Tallagio  non  Conccdenda,  with  an  address 
to  the  reader  "not  to  give  away  anything  of  Liberty  and 
Property  that  at  present  they  do  .  .  .  enjoy,"  the  colo- 
nists felt  themselves  free  to  decide  for  themselves  how 
much  of  the  other  doctrines  of  the  Common  Law  they 
would  adopt,  and  what  portion  they  would  reject.  So  that 
within  a  very  few  years,  when  the  first  Royal  Governor, 
Benjamin  Fletcher,  was  appointed,  in  1682,  he  called  the 
attention  of  the  Assembly  severely  to  several  criminal 
statutes,  laws  as  to  inheritance  of  land,  marriage  and 
other  matters,  which  he  deemed  repugnant  to  the  laws  of 
England,  and  therefore  invalid. 

The  first  courts  in  Pennsylvania  were  the  County  Courts, 
constituted  under  the  Duke  of  York's  Government  in  1673, 
the  records  of  at  least  one  of  which  (Upland  or  Chester 
County)  from  1676  to  1681  are  still  extant.  They  exer- 
cised legislative  as  well  as  judicial  powers,  hearing  suits 
for  debts,  approving  indentures  of  apprentices,  imposing 


I04  A  HISTORY  OF  THE  AMERICAN  BAR 

taxes  and  fines,  punishing  misdemeanors,  granting  lands, 
adjusting  title  disputes  and  directing  uses  of  the  revenue. 
The  judges  were  for  many  years  exclusively  Swedes  and  of 
no  legal  training.  No  attorney  was  allowed  to  practise  for 
pay  before  them. 

In  1 68 2- 1 683,  the  judicial  power  was  exercised  by  the 
Governor  and  Council. 

In  1684,  under  William  Penn's  charter,  a  Provincial  or 
Supreme  Court  was  constituted,  composed  of  five  judges,  of 
which  Nicholas  More,  a  physician,  was  Chief  Justice.  Of 
the  next  six  Chief  Justices,  only  one  was  a  trained  lawyer 
—  John  Guest,  an  English  barrister,  who  became  Chief 
Justice  in  1706.  In  the  same  year,  Roger  Mompesson,  who 
had  been  an  educated  lawyer,  and  the  Recorder  of  South- 
ampton in  England,  was  appointed  Chief  Justice,  at  the 
instance  of  Penn,  who  wrote  to  James  Logan,  advising 
*'the  people  to  lay  hold  of  such  an  opportunity  as  no 
government  in  America  ever  had  of  procuring  the  services 
of  an  English  lawyer." 

After  him,  in  17 15,  came  Joseph  Growdon,  a  man  of  little 
legal  note;  then  came  David  Lloyd,  a  noted  English  lawyer 
(1719-1731).  James  Logan,  a  man  of  great  ability  but  of 
little  legal  training,  followed  (1731-1739);  then  Jeremiah 
Langhorne,  a  preacher  (i 739-1 743).  The  records  of  the 
Court,  April  5,  1743,  throw  light  on  the  prevailing  condition 
of  the  Bench.  "His  honour  told  the  Council  that  as  the 
place  of  Chief  Justice  was  vacant  by  the  death  of  Mr. 
Langhorne  and  it  would  be  of  very  great  advantage  to  the 
province  that  one  of  the  profession  of  the  law  preside  in 
the  Supreme  Court,  he  had  made  an  offer  of  it  to  Mr. 
Kinsey."  The  succeeding  Chief  Justices,  however,  John 
KJnsey  (1743-1750),  William  Allen  (1751-1774)  and  Ben- 
jamin Chew  (17  74-1 7  79)  were  all  trained  lawyers  (the  last 
two  being  English  barristers). 


COLONIAL  BAR  OF  PENNSYLVANIA  105 

With  the  above  exceptions,  it  may  be  said  without 
quahfication  that  laymen,  and  usually  merchants,  filled  all 
judicial  positions,  not  only  in  the  Supreme  Court,  but  also 
in  the  Court  of  Common  Pleas. 

No  records  of  the  Supreme  Court  are  extant;  and  David 
Lloyd  says  that  in  his  time  (the  end  of  the  Seventeenth 
Century)  they  were  written  "on  a  quire  of  paper."  The 
slight  attention  paid  to  the  judicial  records  may  be  seen 
from  the  record  of  a  case  in  1684  —  Johnson  v.  Hance, 
tried  before  the  Provincial  Council,  in  which  the  following 
decree  is  extant:  "The  Governor  and  Council  advised  them 
to  shake  hands  and  to  forgive  one  another,  and  ordered  that 
they  should  enter  into  bonds  for  £50  a  piece,  for  their 
good  abearance,  which  accordingly  they  did.  It  was 
also  ordered  that  the  records  of  the  Court  concerning 
that  business  should  be  burnt."  ^  A  few  of  the  decided 
cases,  however,  are  reported  in  Dallas'  Reports;  and  in 
1892  a  volume  of  Colonial  cases,  the  earliest  dating  back  to 
1683  —  seventy  years  before  the  earliest  case  reported  in 
Dallas  —  was  published  by  Judge  Pennypacker. 

As  a  substitute  for  a  trained  Bench,  the  Quakers  had 
from  a  very  early  date  constituted  a  system  of  settlement 
of  disputes  by  laymen.  In  1683,  provision  was  made  for 
the  appointment  of  three  "common  peacemakers"  in  every 
precinct,  whose  arbitration  was  to  be  valid  and  final  as  a 
judgment.  In  1705,  an  act  was  passed,  providing  that 
parties  having  accounts  against  each  other  might  refer 
them  to  persons  mutually  chosen  by  them  in  open  court, 
whose  award  should  have  the  effect  of  a  verdict  by  a  jury. 
Immense  numbers  of  contract  disputes  were  settled  by 
referees  in  this  way.     Later,  the  practise  was  extended  to 

*  See  Provincial  Minutes,  Vol.  I,  p.  52. 

See  also  especially  The  Forum,  by  David  Paul  Brown,  Vol.  I,  Chap.  II 
(1856). 


io6  A  HISTORY  OF  THE  AMERICAN  BAR 

other  forms  of  legal  action,  so  that  by  1766  there  are  records 
of  elaborate  decisions  by  referees  resembhng  decrees  in 
equity  in  real  estate  matters,  and  in  1790,  Dallas  in  the 
preface  to  his  Reports  states  that  one  of  his  motives  in 
publishing  was  their  "use  in  furnishing  some  hints  for 
regulating  the  conduct  of  referees,  to  whom,  according  to 
the  present  practise,  a  very  great  share  of  the  administra- 
tion of  justice  is  entrusted." 

The  existence  of  this  referee  system  is  probably  account- 
able in  large  part  for  the  very  slow  development  of  a 
Pennsylvania  law.  Merchants  and  land-owners  alike  were 
content  with  the  laymen's  judgment  without  the  aid  of 
lawyers.  Moreover,  for  lawyers  as  a  class,  Penn  and 
his  Quakers  had  an  instinctive  antipathy,  as  being  men 
of  strife  and  of  barratrous  tendencies,  and  therefore 
opposed  to  the  fundamental  religious  views  of  the  new 
settlers. 

Accordingly  in  the  Laws  Agreed  Upon  in  England  of  1682, 
it  was  provided:  "that  in  all  courts  all  persons  of  all  per- 
suasions may  freely  appear  in  their  own  way  and  according 
to  their  own  manner  and  there  personally  plead  their  own 
case  themselves  and  if  unable,  by  their  friends;  that  all 
pleadings,  processes  and  records  in  court  shall  be  short 
and  in  English  and  in  an  ordinary  and  plain  character 
that  they  may  be  understood  and  justice  speedily  ad- 
ministered." 

In  1686  and  in  1690,  the  Provincial  Council  attempted, 
but  without  success,  to  pass  a  bill  preventing  any  person 
pleading  in  any  civil  causes  of  another,  before  he  "be 
solemnlye  attested  in  open  court  that  he  neither  directly 
nor  indirectly  hath  in  any  wise  taken  or  received  or  will  take 
or  receive  to  his  use  or  benefit  any  reward  whatsoever  for 
his  soe  pleading." 

The  popular  attitude  towards  lawyers  is  shown  by  the 


COLONIAL  BAR  OF  PENNS^XVANIA  107 

quaint  remark  of  Gabriel  Thomas,  who  wrote,  in  1690:^ 
"Of  Lawyers  and  Physicians  I  shall  say  nothing,  because 
this  country  is  very  peacable  and  healthy:  Long  may  it 
so  continue  and  never  have  occasion  for  the  tongue  of  the 
one  nor  the  pen  of  the  other  —  both  equally  destructive 
of  men's  estates  and  lives." 

During  the  first  twenty  years,  there  were  probably  not 
more  than  three  or  four  trained  English  lawyers  in  the 
whole  Province,  although  there  were  twenty-three  persons 
called  attorneys  whose  names  are  extant.  These  were, 
however,  almost  entirely  laymen,  with  no  legal  education.^ 

The  paucity  of  lawyers  was  well  illustrated  by  Penn  in 
1700,  in  replying  to  the  charges  made  by  Robert  Quary, 
Judge  of  Admiralty,  of  failing  to  prosecute  William  Smith, 
Jr.,  for  a  heinous  crime.  In  his  answer  Penn  stated  that 
the  defendant  had  "subsequently  married  ye  only  material 
witness  against  him,  which  in  the  opinion  of  ye  only  two 
lawyers  of  the  place  (and  one  of  them  ye  King's  advocate 
of  ye  Adm.iralty  and  ye  attorney  general  of  the  county) 
has  rendered  her  incompetent  to  testify  against  him." 

It  has  been  said  that,  in  1706,  the  whole  Bar  of  Phila- 
delphia consisted  of  G.  Lowther,  David  Lloyd,  Robert 
Assheton  and  Thomas  Clark.^  At  all  events,  it  was  so  small 
that  there  are  records  of  cases  in  which  the  plaintiff  com- 
plained that  the  defendant  had  cornered  all  the  lawyers 
in  the  Province.  Thus  in  1708,  there  was  a  petition  to  the 
Council  from  one  complaining  that  he  had  been  sued  in 
trover  by  Joseph  Growden  and  that  the  latter  had  retained 
all  the  lawyers  in  the  county,  wherefore  he  prayed  the 
Council    to   assign   him   counsel.     So,   too,   in    1709,   one 

J  An  Historical  and  Geographical  Account  of  the  Province  and  Country  of 
Pennsylvania  and  of  West  Jersey  in  America,  by  Gabriel  Thomas  (London, 
1698). 

2  Bench  and  Bar  of  Philadelphia,  by  John  H.  Martin  (18S3). 

'  Discourse  before  the  Law  Academy,  by  P.  IMcCall  (1838). 


io8  A  HISTORY  OF  THE  AMERICAN  BAR 

Francis  D.  Pastorius  complained  that  one  Spogell  had  got  a 
writ  of  ejectment  and  had  feed  and  retained  the  four  known 
lawyers  of  the  Province  "in  order  to  deprive  the  Petitioner 
of  all  advice  in  law,"  and  the  petitioner  being  too  poor  to 
"fetch  lawyers  from  New  York  or  remote  places,  prays  that 
Spogell's  proceedings  may  be  enjoined." 

Of  this  early  Bar,  possibly  the  most  noted  was  David 
Lloyd,  a  Welsh  jurist,  who  was  sent  out  from  England  as 
Attorney-General  in  1686  and  held  many  offices  of  trust  in 
the  Province,  being  looked  upon  as  the  great  advocate  of 
the  people's  rights.  He  became  Chief  Justice  in  17 18, 
and  was  described  by  James  Logan,  his  successor  as  Chief 
Justice  in  1731,  in  a  letter  to  Penn,  as  "a  man  very  stiff 
in  all  his  undertakings,  of  a  sound  judgment  and  a 
good  lawyer,  but  extremely  pertinaceous  and  somewhat 
revengeful." 

Early  in  the  Eighteenth  Century  other  English  lawyers 
came  into  the  Province,  —  of  whom  WiUiam  Assheton, 
John  Moland  and  Andrew  Hamilton  may  be  especially 
named.  The  latter  is  probably  entitled  to  the  distinction  of 
being  the  ablest  and  best  known  lawyer  in  the  American 
Colonies.  Born  in  Scotland  in  1676,  he  had  first  settled  in 
Maryland,  but  afterwards  removed  to  Philadelphia.^  He 
went  to  England  in  171 2,  and  was  called  to  the  Bar  in 
Gray's  Inn.  Returning,  he  became  successively  Attorney- 
General,  Recorder,  Vice-Admiralty  Judge  and  Speaker  of 
the  Assembly  in  Pennsylvania.  His  fame  among  American 
lawyers  is  chiefly  due  to  his  brilliant  defense  of  the  rights  of 
free  speech,  and  his  attack  on  the  old  law  of  libel  in  the 
famous  trial  of  John  Peter  Zenger  for  criminal  libel  in  New 
York  in  1735.  In  the  Colonial  Records  in  1736  (Volume 
IV),  it  is  said  of  Hamilton  that  he  "was  esteemed  and 

1  Different  dates  are  given  for  Hamilton's  birth,  but  the  date  1676  is 
that  stated  in  Great  American  Lawyers  (Vol.  I),  1908. 


COLONIAL  BAR  OF   PENNSYLVANLA  109 

allowed  to  be  as  able  in  that  profession  as  any  on  the 
Continent  of  America." 

The  first  statute  as  to  the  admission  of  lawyers  was 
enacted  in  1722,  providing  that  "there  may  be  a  com- 
petent number  of  persons  of  an  honest  disposition  and 
learned  in  the  law  admitted  by  the  Justices  ...  to 
practise  as  attorneys."  A  form  of  oath  was  prescribed  in 
1726. 

The  real  Bar  of  Pennsylvania  may,  probably,  be  said  to 
have  begun  about  1740,  when  Tench  Francis,  the  brother 
of  Richard  Francis  (the  well-known  author  of  Maxims  oj 
Equity),  came  from  England.  He  is  stated  to  have  been 
"the  most  eminent  .  .  .  the  first  of  the  lawyers  of  that 
Province  to  master  the  technical  difficulties  of  the  profes- 
sion; "  and  Secretary  Peters  wrote  that,  except  Francis 
and  Moland,  all  of  the  lawyers  of  that  period  "are  persons 
of  no  knowledge  and,  I  had  almost  said,  no  principle." 

Horace  Binney  (the  leader  of  the  Philadelphia  Bar  in 
the  early  Nineteenth  Century)  thus  sums  up  the  conditions: 
"Of  the  primitive  Bar  of  the  Province  of  Pennsylvania  we 
know  nothing,  and  next  to  nothing  of  the  men  who  appeared 
at  it  from  time  to  time  up  to  the  termination  of  the  Colonial 
Government. 

"  The  statement  of  Chief  Justice  Tilghman  in  the  Bush 
Hill  case  reveals  to  us  all  we  know  and  all  that  probably 
we  can  ever  know  in  regard  to  this  subject;  for  as  the 
grandson  of  Tench  Francis  who  was  Attorney-General  in 
1745,  and  connected  by  marriage  association  with  the 
most  eminent  famiUes  of  the  Bar,  he  knew  as  much  of  the 
former  Bar  as  any  of  his  contemporaries,  and  they  have  all 
long  since  departed  without  adding  anything  to  what  he 
left.  'From  what  I  have  been  able  to  learn,'  said  the 
Chief  Justice,  'of  the  early  history  of  Pennsylvania,  it 
was  a  long  time  before  she  possessed  lawyers  of  eminence. 


no  A  HISTORY  OF  THE  AMERICAN  BAR 

There  were  never  wanting  men  of  strong  minds  very  well 
able  to  conduct  the  business  of  the  courts  without  much 
regard  to  form.  Such  in  particular  was  Andrew  Hamilton. 
...  But  Mr,  Francis  appears  to  have  been  the  first  of  our 
lawyers  who  mastered  the  technical  difficulties  of  the  pro- 
fession. His  precedents  of  pleading  have  been  handed 
down  to  the  present  day.'  "  ^ 

Betw^een  the  years  1742  and  1776,  seventy-six  lawyers 
were  admitted  to  practise  in  the  Supreme  Court. 

The  twenty  years  before  the  War  of  the  Revolution  in 
Pennsylvania  were  remarkable  for  producing  a  group  of 
lawyers  of  broad  legal  education  and  distinguished  abiHty. 
No  other  Colony  except  South  Carolina  possessed  a  Bar 
having  so  many  men  who  had  received  their  training  in 
the  English  Inns  of  Court.  At  its  head  may  be  placed 
Benjamin  Chew,  a  Maryland  lawyer,  born  in  1722,  a 
barrister  of  the  Middle  Temple,  who  succeeded  Tench 
Francis  as  Attorney-General  in  1755,  and  became  Chief 
Justice  in  1774.  Next  in  distinction  was  Thomas  McKean, 
who  was  born  in  1734,  admitted  to  practise  in  1757,  became 
a  barrister  in  the  Middle  Temple,  and  Chief  Justice  in  1777. 
Edward  Shippen  was  born  in  1729,  admitted  in  1748,  a 
barrister  of  the  Middle  Temple  in  1750,  and  Chief  Justice 
in  1799.  John  Dickinson  was  born  in  Maryland  in  1732, 
studied  in  the  office  of  John  Moland  in  Philadelphia,  and 
became  a  barrister  of  the  Middle  Temple.  Francis  Hop- 
kinson,  who  was  born  in  1737,  was  one  of  the  Signers  of 
the  Declaration  of  Independence,  and  from  1779  to  1791 
Judge  of  Admiralty,  and  of  the  United  States  District 
Court.  George  Read  was  born  in  Maryland  in  1733, 
became  a  barrister  of  the  Middle  Temple,  was  one  of  the 
Signers,  and  later  Chief  Justice  of  Delaware. 

^  See  Lyk  v.  Richards,  9  Sergeant  &  Rawle  322  (1823). 


COLONIAL  BAR  OF  NEW  JERSEY  iii 


New  Jersey 

In  the  Judicial  and  Civil  History  of  New  Jersey,  by  John 
Whitehead  (1897),  no  names  of  any  lawyers  practising  in 
the  Seventeenth  Century  are  given;  and  it  is  said  "the 
Courts  of  New  Jersey  were  not  established  upon  any 
settled  plan  nor  upon  any  perfected  system,  until  about 
the  beginning  of  the  Eighteenth  Century."  ^ 

This  statement  is  only  partially  accurate,  however,  for 
in  East  New  Jersey  there  is  record  of  courts  held  in  ]Mon- 
mouth  County  as  early  as  1667 ;  and  in  1675,  the  Legislature 
created  small  local  courts  and  a  Court  of  Assize  for  appeals. 
In  1682,  by  statute,  a  regular  system  of  courts  was  estab- 
Hshed,  consisting  of  local  courts  held  monthly.  Session  or 
County  Courts  held  annually,  and  a  Court  of  Common 
Right  having  full  law  and  equity  jurisdiction  and  founded 
on  Scotch  models.  In  West  New  Jersey,  statutes  as  early 
as  1 68 1  provided  for  local  courts;  a  Court  of  Appeals  was 
created  in  1693,  consisting  of  the  county  justices  of  the 
peace  and  the  Governor's  Council;  and  this,  in  1699, 
became  the  Provincial  Court  or  Court  of  Appeals. 

Until  New  Jersey  became  consoHdated  as  a  Royal 
Province  in  1702,  the  courts  were  created  by  the  people. 
In    1704,   the   Governor,   Lord   Cornbury,   by   ordinance 

1  In  a  letter  to  the  Lords  of  Trade,  in  1703,  Lord  Cornbury  wrote:  "The 
first  thing  we  proceeded  upon  was  to  settle  some  courts,  and  in  order  to  do 
it,  I  asked  the  gentlemen  of  the  Council  what  courts  they  had  under  the 
proprietary  government.  They  said  that  their  courts  were  ne\'er  very 
regularly  settled,  but  such  as  they  were,  it  was  imder  this  regulation: 
first  they  had  a  court  for  determining  all  causes  under  forty  shillings.  .  .  . 
The  next  court  they  had  was  a  quarterly  court  where  the  justices  of  the  peace 
determined  all  causes  under  £io,  and  they  had  a  court  which  they  called  the 
Court  of  Common  Right,  where  all  causes,  both  criminal  and  civil,  were 
heard.  .  .  .  This  Court  of  Common  Right  consisted  of  the  Governor  and 
Council." 


112  A  HISTORY  OF  THE  AMERICAN  BAR 

established  a  system  of  courts  consisting  of  Justices  of  the 
Peace,  a  Court  of  Common  Pleas,  a  Court  of  General  Ses- 
sions of  the  Peace,  and  a  Supreme  Court  of  Judicature,  with 
an  appeal  to  the  Governor  and  Council. 

The  Supreme  Court  records  are  extant  from  as  early  a 
period  as  1702.  The  first  Chief  Justice  was  the  English 
barrister,  Roger  Mompesson,  who  was  also  Chief  Justice 
of  New  York  and  of  Pennsylvania. 

Out  of  eight  of  his  successors  down  to  the  Revolution, 
three  only,  Thomas  Gordon,  in  1709,  David  Jamison,  in 
1 7 10,  and  Robert  Hunter  Morris,  1 738-1 744,  were  educated 
lawyers.  Of  the  latter  it  was  said,  that  "he  reduced  the 
pleadings  to  precision  and  method  and  possessed  the 
great  perfection  of  his  office,  knowledge  and  integrity,  in 
more  perfection  than  has  often  been  known  before  in  the 
Colonies."  Few  of  the  other  judges  before  the  Revolution 
had  legal  training. 

There  was  little  early  legislation  as  to  lawyers.  In  1682, 
the  Legislature  of  East  Jersey  enacted  that  "in  all  courts, 
all  persons  of  all  persuasions  may  freely  appear  in  their 
own  way  and  according  to  their  own  manner,  and  there 
personally  plead  their  own  cause,  and  if  unable,  by  their 
friends  or  attorneys." 

The  practise  of  the  law  was  evidently  engaged  in  chiefly 
by  pettifoggers  and  by  the  court  officers,  for,  as  in  the  other 
Colonies,  statutes  were  passed,  in  1676  and  1694,  forbidding 
justices  of  the  peace,  sheriffs,  deputies,  clerks  and  messen- 
gers from  practising  as  attorneys. 

In  1698,  all  attorneys  who  pleaded  for  fee  or  hire  were 
required  to  be  admitted  to  practise  by  license  of  the 
Governor. 

In  1740,  an  act  was  passed  regulating  in  detail  the  prac- 
tise of  law  and  establishing  fees.  In  1 769-1 770,  a  storm 
of  attacks  centred  around  lawyers,  arising  from  the  cost, 


COLONLVL  BAR  OF  NEW  JERSEY  113 

abuses  and  multiplicity  of  suits.  Charges  were  preferred 
in  the  Assembly  against  even  the  leaders  of  the  Bar;  and 
mobs  attempted  to  prevent  the  lawyers  from  entering  the 
court  houses.  With  the  passing,  however,  of  the  financial 
crises  then  prevailing,  these  attacks  gradually  died  out.' 

It  is  a  well-known  fact  that  in  its  administration  of 
justice  New  Jersey  has  always,  even  to  the  present  day, 
followed  more  closely  the  old  Enghsh  precedents  than  any 
other  American  State.' 

As  an  example,  in  1755,  the  Supreme  Court  instituted 
the  order  of  sergeants,  in  imitation  of  the  ancient  English 
degree  of  sergeant  at  law;  and  in  1763  it  was  ordered  that 
"no  person  for  the  future  shall  practise  as  a  sergeant  in  this 
court  but  those  that  are  recommended  by  the  Judges  to  the 
Governor  for  the  time  being  and  duly  called  up  by  writ 
and  sworn  agreeably  to  the  practise  in  England."  -  Later, 
the  number  of  sergeants  was  fixed  at  twelve;  and  they 
conducted  examinations  for  admission  to  the  Bar.  They 
were  not  abolished  until  as  late  as  1839. 

In  1767,  a  distinction  was  made  (as  in  Massachusetts) 
between  attorney  and  barrister  (or  counsellor  as  it  was 
termed  in  New  Jersey) ;  and  it  was  provided  that  no  man 
should  practise  as  counsellor  until  he  had  been  an  attorney 
for  three  years  and  duly  examined  in  court  for  the  advanced 
status. 

By  the  time  of  the  Revolution,  an  organized  Bar  had 
grown  up;  and  there  is  a  record  of  the  call  of  a  meeting 
of  the  State  Bar,  in  September,  1765,  to  discuss  the  Stamp 

'  The  Provincial  Court  of  New  Jersey,  with  Sketches  of  the  Bench  and  Bar, 
by  Richard  F.  Field,  N.  J.  Hist.  Soc.  Coll.,  Vol.  III. 

Constitution  and  Government  of  New  Jersey,  with  Reminiscences  of  the 
Bench  and  Bar,  by  L.  Q.  C.  Elmer  (1872),  N.  J.  Hist.  Soc.  Coll.,  Vol. 
VII. 

'  History  of  the  Supreme  Court  of  New  Jersey,  by  Francis  B.  Lee,  Vol.  I 
(1896). 


114  A  HISTORY  OF  THE  AMERICAN  BAR 

Act,  at  which  meeting  it  was  unanimously  resolved  to  use 
no  stamps  for  any  purpose. 

Of  lawyers  of  prominence,  prior  to  the  Revolution,  two 
stand  forth  pre-eminent.  David  Ogden,  born  in  1707,  a 
Yale  graduate  of  1728,  judge  of  the  Supreme  Court  in  1772, 
of  whom  it  was  said  that  as  a  lawyer  he  had  no  equal  in 
New  York  or  New  Jersey;  and  his  pupil,  Richard  Stock- 
ton, born  in  1730,  a  Princeton  graduate  of  1748,  who  was 
admitted  to  the  Bar  in  1754,  as  counsellor  in  1758,  and  as 
sergeant  at  law  in  1763,  in  1774  made  Judge  of  the  Supreme 
Court.  Stockton's  practise  was  very  extensive,  and  his 
reputation  was  such  that  a  legal  education  in  New  Jersey 
was  hardly  considered  complete  unless  it  included  a  course 
of  study  in  liis  ofiS.ce,  frequent  applications  being  made 
besides  from  students  of  other  States.^ 

NOTE 
To  New  York  Text 

For  authorities  in  general,  see: 

Organization  of  the  Supreme  Court  of  Judicature  of  the  Province 

of  New  York,  by  Robert  L.  Fowler,  Albany  Law  Journal, 

Vols.  XIX,  XX. 
Observations  on  the  Particular  Jurisprudence  of  New  York,  by 

Robert  L.  Fowler,  Albany  Law  Journal,  Vols.  XXI,  XXII, 

XXIII. 
Influence  »f  New  York  on  American  Jurisprudence  —  Mag.  of 

American  History  (April,  1879). 
Colonial  Documents  of  New  York. 
Colonial  Laws  of  New  York  from  1664  to  the  Revolution. 
Documentary  History  of  New  York,  by  E.  B.  O'Callaghan. 
Allegiance  and  Laws  of  Colonial  New  York  —  Harv.  Law  Rev., 

Vol.  XV. 

1  Many  of  the  prominent  lawyers  became  Tories  —  Isaac  Allen,  William 
Taylor,  Henry  Waddell,  Cortlandt  Skinner  the  last  Royal  Attorney-General, 
Frederick  Smyth  the  last  Royal  Chief  Justice,  William  Franklin. 

See  Lives  in  Loyalists  of  the  American  Revolution,  by  Lorenzo  Sabine. 


COLONIAL  BAR  OF   NEW  JERSEY  115 

History  of  New  York,  by  William  Dunlap  (1840). 

History  of  New  York,  by  William  Smith  (Vol.  I,  pub.  in  London 
in  1757;  Vol.  II,  in  New  York  in  1826). 

History  of  Nc^o  York,  by  Ellis  H.  Roberts  (1887). 

Lives  and  Times  of  the  Chief  Justices,  by  Henry  Flanders  (1881). 

Dutch  and  Quaker  Colonies  in  America,  by  John  Fiske  (1899). 

Memoirs  of  the  Life  of  William  Livingston,  by  Theodore  Sedg- 
wick, Jr.  (1833). 

American  Criminal  Trials,  by  Peleg  W.  Chandler  (1841). 

The  Bench  and  Bar  of  New  York,  by  David  McAdams  and  others 
(1897). 

John  Peter  Zenger,  his  press,  his  trial  and  bibliography,  by  Living- 
ston Rutherford  (1909). 


To  Pennsylvania  Text 

Dutch  and  Quaker  Colonies,  by  John  Fiske  (1899). 
A  Glance  at  our  Colonial  Bar  —  Green  Bag,  Vol.  XI. 
Pennsylvania  Colonial  and  Federal,  by  Howard  Mcjenkins  (1903). 
English  Common  Law  in  the  Early  American  Colonies,  by  Paul  S. 

Reinsch. 
Bench  and  Bar  of  Old  Philadelphia,  by  John  H.  Harris  (1883). 
Discourse  before  the  Law  Academy,  Sept.  15,  1838,  by  P.  Mc- 

Call  (1838). 
An  Essay  on  Equity  in  Pennsylvania,  by  Anthony  Laussat 

(1825),  in  Penn.  Bar  Ass.  Rep.,  Vol.  I  (1895). 
Pen7isylvania   Jurisprudence,    by    John    W.    Simonton,    Penn. 

Bar  Ass.,  Vol.  I. 
Bar  of  Pennsylvania  and  its  Injluetice,  by  J.  Levering  Jones, 

Penn.  Bar  Ass.,  Vol.  X. 
Courts  of  Pennsylvania  in  the  Seventeenth  Century,  by  Lawrence 

Le\\'is,  Jr.  (1881),  Penn.  Bar  Ass.,  Vol.  I. 
The  Common  Law  of  Pennsylvania,  by  George  Sharswood  (1855), 

Penn.  Bar  Ass.,  Vol.  I. 
The  District  Court,  by  James  T.  Mitchell,  in  Penn.  Bar  Ass., 

Vol.  V  (1885). 
Joseph  Galloway,  by  Ernest  H.  Bald\nn  (1902). 
Life  of  Joseph  Galloway  and  Edward  Shippen,  in  Loyalists  of 

The  American  Kaolution,  by  Lorenzo  Sabine. 


ii6  A  HISTORY  OF  THE  AMERICAN  BAR 

Remarks  to  Bar  on  Death  of  Charles  Chauncey  and  John  Sergeant, 

by  Horace  Binney  (1853). 
The  McKean  Family,  by  Roberdeau  Buchanan  (1890). 
William  Tilghman,  by  Horace  Binney  (1827). 
Life  of  Horace  Binney,  by  Charles  C.  Binney  (1903). 
Horace  Binney  —  Green  Bag,  Vol.  V. 
The  Supreme  Court  of  Femisylvania, by  Judge  F.  Carroll  Brewster, 

in  The  Supreme  Court  of  the  States  and  Provinces,  Vol.  I, 

Series  3  (1895). 
Life  of  Thomas  McKean,  by  Judge  James  T.  Mitchell,  \n  The 
.    Supreme  Court  of  the  States  and  Provinces,  Vol.  I,  Series  3 

(1895). 
Life  and  Times  of  John  Dickinson,  by  Charles  J.  Stille  (1891). 
Memoir  of  William  Rawle,  by  T.   J.   Wharton,  Penn.   Hist. 

Ass.  Proc,  Vol.  IV  (1837). 
Memoir  of  William  Bradford,  by  Horace  Binney  Wallace  (1856). 
The  Republican  Court,  or  American  Society  in  the  Days  of  Wash- 
ington, by  Rufus  W.  Griswold  (1855). 
Life  of  George  Read,  by  William  T.  Read  (1870). 
Life  of  Charles  Jared  Ingersoll,  by  William  M.  Meigs  (1897). 
Scharf  and  Westcott's  History  of  Philadelphia  (1884). 
The  Supreme  Court  of  Pennsylvania,  by  Owen  Wister  —  Green 

Bag,  Vol.  HI. 
Life  and  Writings  of  Alexander  James  Dallas,  by  George  M. 

Dallas  (1871). 
Pennsylvania  Colonial  Cases,  by  Samuel  W.  Pennypacker  (1892), 
The  Law  Association  of  Philadelphia,  iSo2-igo2  (1906). 
The  Courts  of  Pennsylvania  Prior  to  the  Revolution  —  Univ.  of 

Penn.  Law  Rev.,  Vol.  LVI  (1908). 
Judicial  Memoranda  in  the  History  of  Pennsylvania,  in   The 

Journal  of  Jurisprudence,  Vol.  I  (1821). 
Great  American  Lawyers,  Vols.  I,  II  (1908). 
The  Forum,  by  David  Paul  Brown,  Vol.  I  (1856). 


To  New  Jersey  Text 

Judicial  and  Civil  History  of  New  Jersey,  by  John  Whitehead 

(1897). 
The  Courts  of  New  Jersey,  also  Some  Account  of  their  Origin  and 


COLONIAL  BAR  OF  NEW  JERSEY  117 

Jurisdiction,  by  W.  M.  Clevenger  and  Edward  R.  Keasbey 

(1903)- 
The  Provincial  Court  of  New  Jersey,  mth  Sketches  of  the  Bench 

and  Bar,  by  Richard  F.  Field  (1849),  N.  J.  Hist.  Soc.  Coll., 

Vol.  m. 

Constitution  and  Government  of  New  Jersey,  with  Reminiscences 

of  the  Bench  and  Bar,  by  L.  Q.  C.  Elmer  (1872),  N.  J.  Hist. 

Soc.  Coll.,  Vol.  VII. 
Sources  of  Law  in  New  Jersey  —  New  Jersey  Law  Journal,  Vols. 

IV  and  V. 
General  Sources  of  Historical  Information  in  New  Jersey,  by 

Francis  B.  Lee  —  New  Jersey  Law  Journal,  Vol.  XXX  (1907). 
New  Jersey  Archives,  1637-1776  (ten  volumes). 
An  Outline  Sketch  of  the  Early  West  Jersey  Courts  —  New  Jersey 

Law  Journal,  Vol.  XIV  (1891)  Vol.  XV  (1892). 
Bibliography  of  the  Colonial  Law  Books  of  New  Jersey  —  New 

Jersey  Law  Journal,  Vol.  XIV  (1891). 
The  Supreme  Court  of  the  States  and  Provinces  of  North  America, 

by  C.  BeU  (1893)." 


CHAPTER  V 

the  colonial  southern  bar 

South  Carolina 

In  South  Carolina,  under  its  charter  of  1663,  a  form  of 
government  and  an  institution  of  laws,  courts  and  law 
procedure  was  initiated,  which  differed  from  anything  in 
America.  This  was  John  Locke's  celebrated  but  chimerical 
Fundamental  Constitutions  of  Carolina,  issued  in  1669-1670 
by  the  Proprietors.  It  provided  for  a  most  elaborate  sys- 
tem of  courts  of  eleven  different  kinds  and  jurisdictions; 
and  it  contained  the  following  curious  Hmitation  on  the 
courts: 

"Since  multiplicity  of  comments  as  well  as  of  laws  have 
great  inconveniences,  and  serve  only  to  obscure  and  per- 
plex; all  manner  of  comments  and  expositions  on  any 
part  of  these  Fundamental  Constitutions,  or  any  part  of 
the  common  or  statute  law  of  Carolina,  are  absolutely 
prohibited." 

Owing  to  their  impracticability,  few  of  these  Constitutions 
ever  came  into  actual  operation;  and  after  being  modified 
in  1682,  they  were  substantially  abrogated  in  1698.  For 
many  years,  there  was  much  doubt  as  to  how  far  the 
English  law  was  applicable;  and  in  1692,  the  Assembly, 
in  an  address  to  Governor  Ludwell,  had  complained 
because  the  court  had  "assumed  to  put  in  force  such 
English  laws  as  they  deemed  adapted  to  the  Province; 
but  the  Assembly  conceived  that  either  such  laws  were 


THE  COLONL\L  SOUTHERN  BAR  119 

valid  of  their  own  force  or  could  only  be  made  so  by  an  act 
of  the  Assembly." 

In  1 7 12,  by  a  special  act,  the  Assembly  adopted  the 
English  Common  Law  as  a  rule  of  adjudicature,  and  also 
such  English  statutes  (126)  as  had  been  selected  by  Chief 
Justice  Trott  as  applicable  to  the  condition  of  the  Colony. 

No  law  passed  prior  to  1682  is  to  be  found  on  record.  The 
first  authority  for  printing  the  laws  was  given  in  1712;  and 
the  first  compilation  of  the  law,  made  by  Chief  Justice 
Trott,  was  published  in  1736. 

Up  to  1683,  ^11  Judicial  business  was  done  by  the  Governor 
and  Council.  In  that  year,  a  Provincial  Court  was  estab- 
lished with  a  Chief  Justice  appointed  by  the  Proprietor; 
but  it  was  not  until  1720  that  any  assistant  judges  were 
appointed.  The  Governor  and  Council  became  a  Court  of 
Appeals.  There  were  few  other  statutes,  if  any,  relating  to 
courts  or  their  jurisdiction  prior  to  the  wholesale  adoption 
of  English  law,  in  1712.  There  is  no  regular  record  of  any 
judicial  proceedings  prior  to  1703,  nor  any  record  entered 
in  any  bound  books  prior  to  17 10.  Regular  court  records 
are  extant  from  17 16.  Practically  nothing  is  known  of  any 
inferior  courts.  The  e.xpense  of  attending  court  and  the 
delays  in  obtaining  justice  became  so  intolerable,  how- 
ever, that  in  1769,  circuit  courts  were  established  in  the 
various  counties.  The  amount  of  business  transacted  in 
the  courts  was  not  large;  as  it  is  said  that  in  the  seven 
years  before  the  War  of  the  Revolution  the  average  number 
of  judgments  yearly  in  the  whole  Colony  was  only  236.^ 

The  first  Chief  Justice  of  record  was  Edmund  Bohun,  in 
1698,  a  man  of  no  legal  training;  the  next,  in  1702,  Nicholas 
Trott,  an  English  lawyer  of  distinction.  He  remained  in 
office  for  many  years,  finally  becoming  so  arbitrary  and  so 
obnoxious  that,  in  1719,  articles  of  complaint  were  brought 

^  Lives  of  the  Chief  Jtistices,  by  G.  Van  Santfoord. 


I20  A  HISTORY  OF  THE  AMERICAN  BAR 

by  "Richard  Allein,  Richard  Whittaker  and  other  prac- 
titioners of  law,"  alleging  that  he  had  "contrived  many 
ways  to  increase  and  multiply  his  fees,"  that  he  gave 
advice  in  causes  depending  in  his  courts,  and  not  only 
acted  as  counsellor  in  these  cases,  but  had  drawn  deeds 
between  party  and  party,  and  that  the  whole  judicial 
power  of  the  Province  was  lodged  in  his  hands;  he  being, 
at  the  same  time,  sole  judge  of  the  Court  of  Common 
Pleas,  King's  Bench,  Vice-Admiralty,  also  member  of  the 
Council  and  hence  judge  of  the  Court  of  Chancery.  The 
Governor,  Council  and  Assembly  joined  in  an  address  to 
the  Proprietary  for  his  removal. 

When  South  Carolina  became  a  Royal  Province  in  1720, 
an  act  was  passed  pro\dding  for  a  Supreme  Court  consist- 
ing of  a  Chief  Justice  and  four  assistants.  The  Chief 
Justices  were,  as  a  rule,  educated  lawyers;  but  being 
appointed* by  the  Royal  Governors,  were  largely  subservi- 
ent to  the  Crown.  Practically  all  of  the  thirty-four 
assistant  judges,  from  1720  to  1776,  were  laymen  with  no 
legal  training. 

Nevertheless  as  William  Henry  Drayton  (later  Chief 
Justice),  writing  about  the  time  of  the  Revolution,  said: 

"A  few  years  ago  the  bench  of  justice  in  this  Colony  was 
filled  with  men  of  property,  and  if  all  of  them  were  not 
learned  in  the  law,  there  were  some  among  them  who 
taught  their  brethren  to  administer  justice  with  public  ap- 
probation; and  one  in  particular  (Rawlins  Lowndes)  had 
so  well  digested  his  reading,  although  he  had  never  eat 
commons  at  the  Temple,  that  he  was  without  dispute,  at  ■ 
least,  equal  to  the  law  learning  of  the  present  bench."  ^ 

Of  the  early  lawyers  little  is  known;  but  the  early  preju- 
dice against  the  legal  profession  is  shown  by  the  following 
clause  in  Locke's  Constitutions : 

1  Life  and  Times  of  William  Lowndes,  by  Mrs.  St.  J.  Ravenel. 


THE  COLONIAL  SOUTHERN  BAR  121 

"It  shall  be  a  base  and  vile  thing  to  plead  for  money  or 
reward;  nor  shall  anyone  (except  he  be  a  near  kinsman,  not 
farther  off  than  a  cousin-gcrman  to  the  party  concerned) 
be  permitted  to  plead  another  man's  cause,  till,  before  the 
judge  in  open  court,  he  hath  taken  an  oath,  that  he  doth  not 
plead  for  money  or  reward,  nor  hath  nor  will  receive  nor 
directly  nor  indirectly  bargained  with  the  party,  whose  cause 
he  is  going  to  plead,  for  money  or  any  other  reward  for  plead- 
ing his  cause." 

That  this  provision  was  not  enforced,  however,  appears 
from  the  enactment  of  a  statute  in  1694,  prescribing  tables 
of  court  fees,  which  included  attorneys'  fees. 

Among  the  English  statutes  adopted  as  in  force  in  171 2 
was  that  of  Henry  IV  (1402)  as  to  admission  and  examina- 
tion of  attorneys  by  the  courts;  and  in  1721,  admission  of 
attorneys  was  specifically  provided  in  county  courts  in  a 
statute  which  recited  that  ''whereas  divers  unskilful  persons 
do  often  undertake  to  manage  and  solicit  business  in  the 
courts  of  law  and  equity,  to  the  unspeakable  damage  of 
the  clients  occasioned  by  the  ignorance  of  such  solicitors 
who  are  no  ways  qualified  for  that  purpose,  tending  to  the 
promoting  litigiousness  and  encouraging  of  vexatious  suits," 
and  enacted  that  no  person  should  practise  as  attorney 
unless  admitted  and  sworn  by  the  Supreme  Court. 

In  1 76 1,  at  the  time  when  John  Rutledge,  the  earliest  of 
South  Carolina's  great  lawyers,  began  to  practise,  the  Bar 
consisted  of  probably  not  more  than  twenty,  and  prior  to 
the  Revolution  no  more  than  fifty-eight  had  been  admitted 
to  practise.  But  though  small  in  numbers,  it  was  more 
highly  educated  than  any  Bar  in  America,  for  a  considerable 
proportion  of  its  members  had  received  their  legal  training 
in  England. 

Thus,  William  Wragg,  one  of  the  earliest  lawyers,  born 
in  1 741,  was  an  English  barrister;  Peter  Manigault,  born  in 
1 73 1,  was  a  barrister  of  the  Inner  Temple,  and  returned  to 


122  A  HISTORY  OF  THE  AMERICAN  BAR 

practise  in  South  Carolina  in  1754.  John  Rutledge,  born 
in  1739,  studied  in  the  office  of  James  Parsons,  at  Charles- 
ton, and  became  a  barrister  of  the  Inner  Temple  in  1761; 
returning  to  Charleston,  he  at  once  took  rank  as  the  ablest 
lawj^er  of  the  Province,  headed  the  Stamp  Act  opposition, 
was  one  of  the  Signers,  and  became  Chief  Justice  of  the 
State  Court  in  1791,  and  of  the  United  States  Supreme 
Court  in  1795.  William  Henry  Drayton,  "the  Sam 
Adams  of  the  South,"  born  in  1742,  was  educated  at  Oxford. 
Thomas  Heyward,  born  in  1746,  became  a  barrister  of  the 
Middle  Temple,  and  was  one  of  the  Signers.  Thomas 
Lynch,  Jr.,  born  in  1749,  a  barrister  of  the  Middle  Temple, 
was  the  third  Signer  from  South  Carolina. 

Of  the  generation  of  lawyers  who  came  into  practise 
at  the  time  of  the  Revolution,  there  were  many  of  great 
education  and  distinction  at  the  Bar.  The  following 
studied  in  the  Inner  Temple:  John  Laurens,  born  in  1755; 
John  Julian  Pringle,  born  in  1753;  Edward  Rutledge,  born 
in  1749;  Charles  Cotesworth  Pinckney,  born  in  1746; 
Thomas  Pinckney,  born  in  1750;  William  H.  Gibbes,  born  in 
1754,  and  Hugh  Rutledge,  born  in  1741.  John  F.  Grimke, 
born  in  1752,  Theodore  Gaillard  and  Arthur  Middleton 
received  their  education  in  English  universities;  Aedanus 
Burke,  born  in  1743,  was  educated  as  a  priest  in  the  College 
of  St.  Omer  in  France;  Richard  Hutson,  born  in  1747,  and 
Chancellor  from  1784  to  1793,  was  a  graduate  of  Princeton. 

North  Carolina 

In  North  Carolina,  which  became  known  as  a  separate 
Province  about  1691  (although  not  formally  made  so  until 
1 731),  John  Locke's  Constitutions  were  theoretically  the 
frame  of  government  until  their  abrogation;  but  in  1715, 
an  act  was  passed  by  the  Provincial  Legislature  providing 
that  the  Common  Law  should  be  in  force,  "so  far  as  shall 


THE  COLONIAL  SOUTHERN  BAR  123 

be  compatible  with  our  way  of  living  and  trade,"  and  certain 
specific  English  statutes  were  also  adopted.  No  compila- 
tion of  laws  was  made  until  1732.  A  Commission  was 
appointed  to  revise  the  laws  in  1746,  and  again  in  1776; 
and  the  first  printed  collection  of  laws  was  in  1751. 

Until  1702,  the  Governor  and  Council  acted  as  the  Court. 
In  that  year  a  General  Court,  consisting  of  a  Chief  Justice 
and  two  assistant  judges,  was  established.  The  earliest 
Chief  Justice  named  in  the  records  was  the  famous  Anthony 
Ashley  Cooper,  Lord  Shaftesbury,  who  exercised  the  duties 
of  his  post  through  a  deputy.  Only  a  few  of  the  Chief 
Justices  prior  to  1746  were  trained  lawyers,  and  when 
such,  they  were  English  barristers  sent  from  England,  the 
first  barrister,  William  Smith,  coming  in  173 1;  but  in  1746, 
a  Superior  Court  was  constituted,  the  judges  of  which  were 
required  by  statute  to  be  lawyers. 

The  earliest  record  of  County  Courts  is  in  1693. 

Of  North  Carolina  lawyers,  little  is  recorded;  and  the 
condition  of  education  in  the  Colony  was  unfavorable  to 
the  development  of  native  talent. 

Early  in  the  Eighteenth  Century,  however,  they  were 
allowed  to  practise;  but  the  Court  ordered  that  they  must 
be  licensed  by  the  Chief  Justice  and  judges;  and  that  no 
sheriff,  undersherifT  or  clerk  should  plead  as  attorney  at  law. 
The  English  statute,  3  James  I,  c.  7,  as  to  admission  and 
regulation  of  attorneys,  was  treated  as  in  force  in  the  Colony. 

The  only  eminent  members  of  the  early  Colonial  Bar 
were  Thomas  Barker;  Samuel  Johnston,  a  Scotch  law>'er; 
Henry  Eustace  McCulloch,  a  barrister  of  the  Inner  Temple, 
who  practised  in  the  Province  from  1761  to  1767;  Thomas 
Jones  and  Alexander  Elmsly,  both  English  lawyers;  John 
Dawson,  a  Virginiar ;  William  Avery,  born  in  Connecticut, 
a  Princeton  graduate,  and  Attorney-General  in  1777; 
Jasper  Charlton;  William  Gumming,  and  Robert  Smith. 


124  .A  HISTORY  OF  THE  AMERICAN  BAR 

'  Undoubtedly  the  most  prominent  of  all  the  later  North 
Carolina  Bar  was  James  Iredell,  who,  born  in  England  in 
1750,  came  to  the  Province  in  1768,  where  he  studied  law 
under  Samuel  Johnston,  and  in  1770,  "with  the  approba- 
tion and  recommendation  of  Chief  Justice  Howard,  received 
from  Governor  Tryon  a  license  to  practise  law  in  all  the 
Inferior  Courts. "  In  1 7  7 1 ,  he  was  licensed  by  the  Governor 
to  practise  in  the  Superior  Courts, 

Of  the  conditions  of  the  legal  profession  in  North  Carolina 
in  his  day,  the  following  graphic  account  is  given :  ^ 

"  Upon  horseback,  often  alone,  through  the  dense  forests 
and  across  the  almost  trackless  Savannahs,  the  lawyer  of 
that  day  travelled  his  weary  circuit.  Accommodations 
by  the  way  were  generally  despicably  vile;  inns  or  taverns 
in  the  true  sense  had  no  existence.  After  the  fatigue  of 
a  long  day's  journey  the  wayworn  traveller  was  often  con- 
tent with  a  bench  by  the  hearth  of  some  primitive  log 
cabin.  .  .  .  Books  he  had  not,  save  a  volume  or  two 
stuffed  into  his  saddle-bags  with  a  scanty  supply  of  ap- 
parel. At  this  period,  too,  in  what  was  then  called  the 
'  back  country,'  now  the  interior  of  North  Carolina,  the 
gentlemen  of  the  Bar  were  objects  of  obloquy  and  denun- 
ciation to  a  generally  poor  and  illiterate  people,  and  fre- 
quently experienced  at  their  hands  the  grossest  outrages. 
.  .  .  The  people  justly  complained  of  the  burden  of  their 
taxes  —  a  burden  augmented  by  the  extortion  of  illegal  fees 
by  the  officers  of  the  courts;  but  with  a  blind  prejudice, 
many  of  them  only  saw  in  the  profession,  those  who  de- 
fended their  oppressors,  and  who  prosecuted  them  when 
their  opposition  broke  out  into  acts  of  violence.  Unculti- 
vated settlers  who  subdue  the  wilderness  are  apt  to  look 
with  suspicion  upon  the  proprietor  of  the  soil  when  he  de- 
mands rent  for  his  land  or  its  value;  .  .  .  and  the  attorneys 
employed  to  bring  ejectments  or  sue  for  use,  as  the  venal 
instruments  of  tyranny,  bandits  hired  by  gold  to  despoil 
them  of  the  fruits  of  their  honest  industry." 

>  Lije  and  Correspondence  of  James  Iredell,  by  Griffith  J.  McRee  (1857). 


THE  COLONIAL   SOUTHERN  BAR  125 

In  1777,  Iredell  became  Judge  of  the  Superior  Court, 
resigning  the  next  year,  and  in  1789  he  was  appointed 
Judge  of  the  Supreme  Court  of  the  United  States. 

Contemporary  with  him,  after  the  Revolution,  were 
Abner  Maurice  Moore;  Archibald  McClaine;  Alfred  Moore, 
who,  born  in  1755,  a  student  at  Harvard  but  not  a  graduate, 
succeeded  Iredell  in  the  United  States  Supreme  Court; 
William  R.  Davie,  born  in  England  in  1756,  a  Princeton 
graduate  of  1776,  admitted  to  practise  in  North  Carolina 
in  1780,  and  of  whom  it  was  said,  "if  he  had  superiors  in 
legal  learning  and  close  reasoning,  he  as  an  orator  was 
inferior  to  none  in  the  State;"  John  Haj^ood,  who  was 
born  in  1753,  became  Attorney-General  in  1791  and  pub- 
lished his  Reports  in  1799. 

Both  of  the  Signers  of  the  Declaration  of  Independence 
from  North  Carolina  were  lawyers.  One,  William  Hooper, 
was  born  in  Boston  in  1742,  a  graduate  of  Harvard  in  1760, 
and  a  student  under  James  Otis  in  1761,  the  same  year  in 
which  Otis  argued  the  Writs  of  Assistance.  He  came  to 
North  Carolina  in  1767,  and  within  six  years  became  a 
leading  member  of  the  Bar.  The  other,  John  Penn,  was 
born  in  Virginia  in  1741,  a  student  under  Edmund  Pendle- 
ton, and  removed  to  North  Carolina  in  1774. 

Georgia 

No  laws  were  passed  by  the  General  Assembly  of  Georgia 
until  1755,  the  Colony  having  previously  been  under  the 
arbitrary  rule  of  the  Proprietor. 

The  first  court  of  Georgia,  held  at  Savannah  in  1733, 
was  lawyerless;  but  when  Georgia  became  a  Crown  Colony 
in  1752,  the  Chief  Justice  was  required  to  be  an  EngHsh  bar- 
rister. The  three  assistant  judges  were  usually  la^Tnen  of 
high  standing  in  the  community,  and  received  no  salaries. 

In  1789,  the  Superior  Court  of  the  State  was  established. 


126  A  HISTORY  OF  THE  AMERICAN  BAR 

The  native  Bar  of  the  early  Eighteenth  Century  was 
small;  but  a  few  English  barristers  practised  in  Savannah. 
George  Walton,  one  of  the  Signers,  who  was  born  in  Vir- 
ginia in  1740,  admitted  to  the  Bar  there  in  1774  and  removed 
to  Georgia,  where  he  became  Chief  Justice  in  1783,  and 
Abraham  Baldwin,  who  was  born  in  Connecticut  in  1754 
and  a  Yale  graduate  of  1772,  are  two  of  the  few  Colonial 
American  lawyers  of  Georgia  whose  names  survive.  Ad- 
mission to  practise  and  the  lawyer's  oath  were  regulated 
by  the  English  statute  of  1729  (2  George  II),  which  was 
treated  as  a  force  in  Georgia  after  1731. 

NOTE 

To  South  Carolina  Text 

For  authorities  in  general,  see: 

History  of  South  Carolina,  by  David  Ramsay  (1808). 
Sketch  of  History  of  South  Carolina,  by  W.  J.  Revers  (1856). 
View  of  the  Constitution  of  the  British  Colonies  in  North  America 

and  the  West  Indies,  by  Anthony  Stokes  (1783). 
Glance  at  our  Colonial  Bar  —  Green  Bag,  Vol.  XI. 
Willis  on  Law  and  Lawyers  —  Amer.    Quarterly    Review y  Vol. 

XIV  and  Vol.  XV. 
Bench  and  Bar  of  South  Carolina,  by  John  B.  O'Neall  (1859). 
Old  Virginia  and  her  Neighbors,  by  John  Fiske  (1897). 
Life  and  Times  of  William  Lowndes,  by  Mrs.  St.  J.  Ravenel 

(1901). 
Tlie  History  of  South  Carolina,  by  Edward  McCrady  (1897), 

To  North  Carolina  Text 

North  Carolina  Records. 

History  of  North  Carolina,  by  F.  K.  Hawks  (1889). 

English  Common  Law  in  the  early  American  Colonies,  by  Paul 

F.  Reinsch. 
Sanderson's  Lives  of  the  Signers. 
Life  and  Correspondence  of  James  Iredell,  by  Griffith  J.  McRee 

(1857). 


THE  COLONIAL  SOUTHERN  BAR  127 

Address  on  the  Life  of  William  Hooper,  by  Edward  A.  Alder- 
man (1894). 

Life  of  William  R.  Davie,  in  Sparks'  American  Biography. 

The  Supreme  Court  of  North  Carolina,  by  Walter  Clark  —  Green 
Bag,  Vol.  IV. 

Alfred  Moore  —  Green  Bag,  Vol.  XII. 

A  Masterpiece  of  Cotistitutiotml  Folly  —  Green  Bag,  Vol.  XII. 

To  Georgia  Text 

Bench  and  Bar  of  Georgia,  by  Stephen  F.  Miller  (1858). 

Gla>ice  at  Our  Colonial  Bar  —  Green  Bag,  Vol.  XI. 

History  of  Georgia,  by  Charles  C.  Jones  (1883). 

History  of  Augusta,  by  Salem  Dutcher  (1890). 

Georgia  Law  Books,  by  Joseph  R.  Lamar,  in  Georgia  Bar  Ass. 

Proc,  Vol.  XV. 
A  Lawyerless  Court,  by  Walter  G.  Charlton,  in  Georgia  Bar  Ass. 

Proc,  Vol.  XVIII. 
Georgia  Lawyers  Viewed  by  a  Woman,  in  Georgia  Bar  Ass. 

Proc,  Vol.'  XVIII. 


CHAPTER  VI 

new  england  colonial  bar 

Connecticut 

The  development  of  the  law  and  of  the  Bar  in  Con- 
necticut followed  exactly,  step  by  step,  that  of  Massa- 
chusetts. 

Of  the  leaders  in  its  settlement  in  1636-1637,  only  three 
were  men  educated  in  the  law,  —  Roger  Ludlow,  an  Ox- 
ford graduate,  a  student  in  the  Inner  Temple  in  161 2,  a 
member  of  the  Court  of  Assistants  in  Massachusetts; 
Governor  John  Haynes,  a  man  "very  learned  in  the  laws  of 
England;"  and  Governor  John  Winthrop  the  younger,  a 
barrister  of  the  Inner  Temple  in  1624.  With  these  excep- 
tions, there  are  no  records  of  the  existence  of  any  trained 
lawyers  in  Connecticut  during  the  Century. 

The  first  American  written  constitution,  known  as  the 
"Fundamental  Orders,"  was  prepared  by  Ludlow  in  1639; 
and  in  1650  he  drafted,  at  the  request  of  the  General 
Assembly,  a  Body  of  Lawes  in  seventy-seven  sections, 
fourteen  of  which  were  taken  from  the  Massachusetts 
Body  of  Liberties,  the  rest  being  the  fruit  of  his  own  learn- 
ing. This  code,  which  showed  great  ability,  originality  and 
research,  became  the  foundation  of  all  law  in  Connecticut. 

The  general  attitude  towards  the  EngHsh  law  entertained 
by  both  the  settlements  which  made  up  the  Colony  of 
Connecticut  was  much  the  same  as  that  of  Massachusetts; 
and  may  be  expressed  by  the  resolution  framed  by  the 
freemen  of  the  New  Haven  settlement,  in  1639:  "That 


NEW  ENGLAND  COLONIAL  BAR  129 

the  words  of  God  shall  be  the  onely  rule  to  be  attended  unto 
in  ordering  the  affayres  of  government  in  this  plantation." 

The  sole  court  at  first  consisted  of  the  General  Court  or 
Assembly,  composed  of  the  Governor,  Deputy-Governors, 
the  twelve  Assistants  (or  Councillors),  elected  at  large  and 
constituting  the  higher  branch  of  the  Legislature,  and  the 
Representatives  or  lower  branch.  After  the  Royal  charter 
of  1662,  the  Governor,  Deputy-Governor  and  at  least  six 
of  the  twelve  Assistants  exercised  all  the  judicial  powers  of 
the  General  Court,  and  were  called  the  Court  of  Assistants. 
It  was  not  until  17 10  that  a  separate  Superior  Court  was 
constituted,  with  a  Chief  Justice  and  four  justices  (usu- 
ally elected  from  the  Assistants).  The  General  Assembly, 
however,  still  continued  as  a  final  Court  of  Appeal. 

As  a  result  of  the  elective  system  in  choosing  the  judges, 
they  were  seldom  trained  lawyers ;  and  even  when  they  had 
received  any  legal  education,  they  had  frequently  been 
first  brought  up  in  some  other  trade  or  profession.  Thus, 
Roger  Wolcott,  who  was  Chief  Justice  in  174 1,  was  originally 
a  weaver;  Jonathan  Trumbull,  a  most  distinguished  Chief 
Justice  from  1766  to  1769,  was  first  a  minister,  and  later  a 
merchant,  only  incidentally  stud}ing  law.^  This  condition 
of  affairs  prevailed  even  after  the  War  of  the  Revolution; 
for  Oliver  Ellsworth,  who  was  a  judge  of  the  Superior 
Court  in  1784  and  who  became  Chief  Justice  of  the  Supreme 
Court  of  the  United  States  in  1796,  studied  first  for  the 
ministry ,2  as  did  Jesse  Root,  who  was  Chief  Justice  in  1796. 

With  a  court  constituted  largely  of  laymen,  it  was 
natural  that  there  should  be  little  pleading  of  any  kind  in 

1  Bom  in  1 710,  a  graduate  of  Harvard  in  1727.  So  great  was  his  sagacity 
and  ability,  that  during  his  long  Governorship  of  the  State  (1769-1784), 
Washington's  constant  reliance  on  his  advice,  taking  the  form  of  "  we  must 
consult  Brother  Jonathan,"  became  the  foundation  of  that  nickname  for 
the  United  States. 

*  Bom  in  1745,  studied  at  Yale  1762-1764,  a  Princeton  graduate  in  1766. 


130  A  fflSTORY  OF  THE  AMERICAN  BAR 

law  suits;  and  there  were  no  statutes  prescribing  forms 
until  1709,  1720  and  1731. 

Under  all  these  circumstances,  the  Bar  developed  even 
later  than  in  Massachusetts.  In  1667,  the  General  Court 
prohibited  "all  persons  from  pleading  as  attorneys  in  behalf 
of  any  person  that  is  charged  or  prosecuted  for  delinquency 
(except  he  speak  directly  to  matter  of  law  and  with  leave 
from  the  authority  present)"  under  fine  of  ten  shillings,  or 
the  stocks  for  one  hour. 

In  1708,  an  act  was  passed,  regulating  the  admissions  of 
attorneys  to  practise,  and  providing  that: 

"  No  person  except  in  his  own  case,  shall  be  admitted 
to  make  any  plea  at  the  Bar  without  being  first  approved 
of  by  the  court  before  whom  the  plea  is  to  be  made,  nor 
until  he  shall  take  in  the  said  court  the  following  oath,  viz. : 
'You  shall  do  no  falsehood,  nor  consent  to  any  to  be  done 
in  the  court,  and  if  you  know  of  any  to  be  done,  you  shall 
give  knowledge  thereof  to  the  justices  of  the  court,  or  some 
of  them,  that  it  may  be  reformed.  You  shall  not  wittingly 
and  willingly  promote,  sue  or  procure  to  be  sued,  any  false 
or  unlawful  suit,  nor  give  aid  or  consent  to  the  same.  You 
shall  delay  no  man  for  lucre  or  malice,  but  you  shall  use 
yourself  in  the  ofl&ce  of  an  attorney  within  the  court  accord- 
ing to  the  best  of  your  learning  and  discretion,  and  with  all 
good  fidelity,  as  weU  to  the  court  as  to  the  client.  So  help 
you  God.' "  1 

This  law  required  authority  from  the  court  in  each  par- 
ticular case;  and  no  statute  providing  for  the  general 
admission  of  attorneys  existed  until  1750. 

In  1725,  an  act  was  passed,  taxing  all  persons  practising 
as  attorneys  in  the  Colony,  "for  their  faculty,"  by  which 
those  who  were  "the  least  practitioners"  were  to  be  set 
in  the  list  for  fifty  pounds,  and  others  "according  to  their 

*  This  form  of  oath  is  substantially  the  same  as  that  in  use  in  Massa- 
chusetts, and  was  derived  from  that  in  use  in  England  in  1649. 


NEW  ENGLAND   COLONIAL  BAR  131 

practise."    In  1730,  the  number  of  attorneys  was  limited 
as  follows: 

"  Whereas  many  persons  of  late  have  taken  upon  them- 
selves to  be  attorneys  at  the  Bar  so  that  quarrels  and  law- 
suits are  multiphcd  and  the  King's  good  subjects  disturbed; 
to  the  end  that  said  mischief  may  be  prevented  and  only 
proper  persons  allowed  to  plead  at  the  Bar,  ...  be  it 
enacted:  that  there  shall  be  allowed  in  the  Colony  eleven 
attorneys  and  no  more  .  .  .  which  attorneys  shall  be 
nominated  and  appointed  from  time  to  time  as  there  shall 
be  occasion  by  the  county  courts." 

And  in  actions  to  land  titles  involving  ten  pounds  or  less, 
each  party  was  allowed  one  attorney  to  plead,  and  over 
ten  pounds,  two  attorneys.  The  restriction  of  the  number 
of  attorneys,  however,  was  abolished  in  173 1.  In  the 
statistics  of  the  Connecticut  Bar,  prepared  by  the  noted 
Judge  Thomas  Day,  there  appear  the  names  of  no  lawyers 
practising  in  the  Seventeenth  Century. 

Of  Eighteenth  Century  lawyers  before  the  Revolutionary 
War,  there  were  comparatively  few  of  distinction  or  legal 
training.  One  of  the  earliest  was  Thomas  Fitch,  born  in 
1699,  a  graduate  of  Yale  in  1721,  who  codified  the  laws, 
became  Chief  Justice  and  later  Governor;  "probably  the 
most  learned  lawyer  who  had  ever  been  an  inhabitant  of 
the  Colony,"  said  the  first  President  Dwight  of  Yale. 

Jared  Ingersoll,  the  elder,  born  in  1722,  a  Yale  graduate  of 
1742,  was  a  trained  lawyer,  and  acted  as  the  Colony's  agent 
in  England.  Phineas  Lyman,  born  in  17 16,  a  Yale  grad- 
uate of  1738,  was  also  eminent  about  the  middle  of  the 
Century. 

Nothing  illustrates  the  smallness  of  the  Bar  better  than 
the  fact  that  when  the  famous  case  of  Winthrop  v.  Lechmcre, 
1 7  24-1 7 28,  arose  —  the  case  of  an  appeal  from  the  decisions 
of  the  Probate  Judge  and  of  the  Superior  Court,  by  a 


132  A  HISTORY  OF  THE  AMERICAN  BAR 

brother  claiming  the  whole  of  the  estate  of  an  intestate,  in 
conformity  with  the  Common  Law  of  England,  and  deny- 
ing the  vahdity  of  the  Connecticut  statute  of  descent, 
which  was  absolutely  inconsistent  with  the  English  Com- 
mon Law  —  no  counsel  were  sent  from  Connecticut  to  argue 
the  case  before  the  King  in  Council  in  London;  but  both 
sides  relied  on  English  lawyers,  Sir  Philip  Yorke,  Attorney- 
General  of  England  (later  Lord  Chancellor),  appearing  for 
the  appellant;  and  for  the  appellee  Sir  John  Willes  (later 
Attorney-General  and  Chief  Justice  of  Common  Pleas), 
and  a  JNIr.  Booth  (of  whom  nothing  is  known)  .^ 

One  of  the  first  American  lawyers  to  argue  before  the 
Kling  in  Council  was  William  Samuel  Johnson,  who 
appeared  there  in  the  famous  Mohegan  case,  involving 
important  landed  interests  in  Connecticut.  Bom  in  1727, 
a  Yale  graduate  of  1744,  and  a  Doctor  of  Civil  Law  at 
Oxford,  he  was  one  of  the  leaders  of  the  Bar  in  the  middle 
of  the  Century,  and  from  1766  to  1771  was  Colonial  Agent 
in  London. 

His  influence  was  thus  described  in  an  obituary: 

"His  first  appearance  at  the  Bar  forms  an  epoch  in  the 
legal  history  of  his  native  state.  The  legal  system  of 
Connecticut  was  at  that  time  exceedingly  crude,  and  the 
irregular  equity  by  which  the  courts  were  guided  was 
rather  perplexed  than  enlightened  by  occasional  recur- 
rence to  a  few  of  the  old  Common  Law  authorities  which 

1  Nine  years  later,  in  1737,  when  the  similar  Massachusetts  case  of 
Phillips  V.  Savage  was  argued  before  the  King  in  Council,  only  one  Colonial 
lawyer  appeared  in  the  case,  Jonathan  Belcher  of  Boston,  with  whom  was 
Sir  John  Strange  (later  Master  of  the  Rolls);  Sir  Dudley  Ryder  (later 
Lord  Mansfield's  predecessor  as  Lord  Chief  Justice)  and  John  Brown  (of 
whom  nothing  is  known)  appearing  for  the  other  side.  See  Mass.  Hist. 
Soc.  Proc,  Vol.  V  (i860). 

Mass.  Hist.  Soc.  Proc,  Vol.  VIII,  2d  Series  (1893). 

The  Talcoll  Papers,  Conn.  Hist.  Soc.  Coll.,  Vol.  IV. 

Mass.  Hist.  Soc.  Coll.,  6th  Series,  Vol.  V. 


NEW  ENGLAND   COLONL\L  BAR  133 

were  respected  without  being  understood.  Dalton's  Sherijf 
and  Justice  of  Peace  and  one  or  two  of  the  older  books  of 
Precedents  formed  the  whole  library  of  the  Bar  and  the 
Bench.  .  .  .  Mr.  Johnson  rendered  an  important  service 
to  his  countrymen  by  introducing  to  their  knowledge  the 
liberal  decisions  of  Lord  Mansiield  and  the  doctrines  of  the 
civilians." 

Two  other  lawyers  were  especially  prominent  before  the 
Revolution.  The  first  was  Mathew  Griswold,  who  was 
born  in  17 14,  and  quaintly  described  by  President  Stiles 
of  Yale  College  in  1790  as  follows: 

"Fitted  for  college,  settled  a  farmer,  studied  law  propria 
Mark,  bo't  him  the  first  considerable  Law  library,  took 
atty  oath  and  began  practice  1743  —  a  great  reader  of  law," 

and  who  became  Chief  Justice  in  1769,  succeeding  Jonathan 
Trumbull.  The  second  was  Roger  Sherman,  who  was  born 
in  Massachusetts  in  1721,  admitted  to  practise  in  1754, 
made  a  judge  of  the  Court  of  Common  Pleas  in  1759,  a 
member  of  the  Council  or  Upper  House  in  1766  and  also 
judge  of  the  Superior  Court,  which  latter  position  he  held 
until  1789,  the  last  four  years  being  a  colleague  of  Oliver 
Ellsworth.  In  1783,  he  was  appointed  with  Richard  Law  to 
digest  the  statutes.  He  was  head  and  front  of  the  Revolu- 
tionary movement  and  one  of  the  Signers. 

In  1779,  Noah  Webster,  then  just  graduating  from  Yale, 
spoke  of  William  Samuel  Johnson,  Oliver  Ellsworth  and 
Titus  Hosmer  as  the  "three  mighties"  of  the  Connecticut 
Bar,  Contemporary  with  these  were  James  A.  Hillhouse,^ 
Samuel  Huntington,^  Eliphalet  Dyer,^  Richard  Law,^  Amos 

1  Bom  in  1730,  a  Yale  graduate  of  i749- 

2  Bom  in  1731,  judge  of  the  Superior  Court  in  1774,  Chief  Justice  in  1784, 
one  of  the  Signers,  of  whom  it  is  said  "few  lawyers  enjoyed  a  more  extensive 
practice." 

3  Bom  in  1721,  a  Yale  graduate  of  1740,  Chief  Justice  1789-1793. 
<  Bom  in  1733,  a  Yale  graduate  of  1751,  Chief  Justice  1786-1789. 


134  A  HISTORY  OF  THE  AlVIERICAN  BAR 

Botsford,  Samuel  Holden  Parsons/  Charles  Chauncey  ^  and 
Jesse  Root.^ 

New  Hampshire 

In  New  Hampshire  no  regular  courts  existed  at  all  until 
1 641,  when  the  Colony  was  united  to  Massachusetts,  and 
came  under  its  laws.  When  it  was  made  a  Royal  Province 
in  1679,  the  President  and  Council  acted  as  the  court,  with 
appeal  to  the  General  Assembly. 

Richard  Martyn,  the  first  Chief  Justice  of  the  Superior 
Court  of  Judicature,  in  1693,  was  a  merchant  without  legal 
education. 

In  1699,  the  Superior  Court  of  Judicature  was  reorgan- 
ized; but  no  one  of  its  judges  were  lawyers — John  Hinckes, 
Chief  Justice,  Peter  Cofiin,  John  Gerrish  and  John  Plaisted. 
Inferior  Courts  of  Common  Pleas  and  Quarterly  Courts  of 
Sessions  were  also  constituted  in  1699.  No  practising  attor- 
ney was  appointed  to  the  Bench  until,  in  1754,  Theodore 
Atkinson,  who  had  been  a  clerk  of  the  Court  of  Common 
Pleas  in  Massachusetts  and  admitted  to  the  Bar  there  in 
1 73 1,  became  the  first  Chief  Justice  with  any  legal  training.^ 
Prior  to  the  Revolution,  only  two  other  judges  were  lawyers, 
—  Leverett  Hubbard,  who  had  studied  law  in  Rhode  Island, 
appointed  judge  in  1763,  and  WilHam  Parker,  appointed  in 
1 77 1,  "a  well  read  and  accurate  lawyer"  and  the  head  of 
the  Bar.^ 

From  1776  to  1782,  the  Chief  Justice  was  MeschechWeare, 

1  Bom  in  1737,  a  student  with  Governor  Mathew  Griswold,  the  last 
royal  Attorney-General. 

2  Bom  in  1747,  judge  of  the  Superior  Court  1789-1793,  "for  forty  years 
a  lecturer  on  jurisprudence." 

'  Bom  in  1736,  Princeton  graduate  of  1756,  Chief  Justice  1 796-1 807. 
author  of   Roofs  Reports. 

*  Bom  in  1697,  Harvard  graduate  of  1716,  Chief  Justice  1754-1755. 
^  Bom  in  1703. 


NEW  ENGLAND  COLOXLVL  BAR       135 

who  had  studied  theology  but  did  not  preach;^  Matthew 
Thornton,  a  physician,  and  John  Wentworth,  a  lawyer  of 
little  distinction,  being  his  associates.  From  1782  to  1790, 
Samuel  Livermore  was  Chief  Justice.  He  was  a  trained 
lawyer,  born  in  1732,  in  Massachusetts,  a  graduate  of 
Princeton  in  1752,  a  student  in  the  office  of  Judge  Edmund 
Trowbridge,  in  1769  King's  Attorney  in  New  Hampshire, 
Attorney-General  of  the  State  in  1776.  He  sat  on  the  bench 
however  with  three  associates  who  were  not  lawyers,  and  he 
himself  was  intolerant  of  legal  precedent.  It  is  said  that 
in  charging  the  jury  he  used  to  caution  them  "against 
paying  too  much  attention  to  the  niceties  of  the  law  to 
the  prejudice  of  Justice;"  and  when  reminded  of  previous 
rulings  of  his  own  contrary  to  his  present  ruling,  he  would 
reply  that  "every  tub  must  stand  on  its  own  bottom." 

Jeremiah  Mason  said  in  his  Autobiography  that  law  learn- 
ing in  1 791  was  in  a  very  low  state  in  the  New  Hampshire 
courts,  and  that  Benjamin  West,  "by  far  the  best  lawyer  in 
this  region  of  the  country,"  told  him  this  anecdote  of  Liver- 
more,  as  illustrating  the  uselessness  of  citing  precedents: 

"Judge  Livermore,  having  no  law  learning  himself,  did 
not  hke  to  be  pestered  with  it  at  his  courts.  When  West 
attempted  to  read  law  books  in  a  law  argument,  the  Chief 
Justice  asked  him  why  he  read  them;  'if  he  thought  that 
he  and  his  brethren  did  not  know  as  much  as  those  musty 
old  worm-eaten  books  ? '  Mr.  West  answered, '  These  books 
contain  the  wisdom  of  the  ancient  sages  of  the  law.'  The 
reply  was,  'Well,  do  you  think  we  do  not  understand  the 
principles  of  justice  as  well  as  the  old  wigged  lawyers  of 
the  dark  ages  did  ? '  " 

Josiah  Bartlett,  a  physician,  was  Livermore's  associate,  of 
whom  it  was  said,  that  "when  the  law  was  uith  the  plaintiff, 
and  equity  seemed  to  him  on  the  other  side,  he  was  sure  to 

^  Bora  in  1713,  Harvard  graduate  of  173S.J 


136  A  HISTORY  OF  THE  AMERICAN  BAR 

pronounce  in  favor  of  equity."  John  Dudley,  the  most 
prominent  of  the  associate  judges  from  1785  to  1797,  was  a 
farmer  and  trader;  and  his  style  of  charging  the  jury  has 
been  quoted  as  follows: 

"Gentlemen  of  the  jury,  the  lawyers  have  talked  to  you 
of  law.  It  is  not  the  law  we  want,  but  justice.  They  would 
govern  us  by  the  Common  Law  of  England.  Trust  me, 
gentlemen,  common  sense  is  a  much  safer  guide  for  us,  the 
common  sense  of  Raymond,  Exeter  and  the  other  towns 
which  have  sent  us  here  to  try  this  case  between  two  of 
our  neighbors.  It  is  our  business  to  do  justice  between  the 
parties  not  by  any  quirks  of  the  law  out  of  Coke  or  Black- 
stone  —  books  that  I  never  read  and  never  will  —  but  by 
common  sense  as  between  man  and  man." 

In  one  case,  in  which  Jeremiah  Mason  had  filed  a  demur- 
rer, Judge  Dudley  said  that  "  demurrers  were  no  doubt  an 
invention  of  the  Bar  to  prevent  justice,  a  part  of  the 
Common  Law  procedure,"  but  that  he  had  always 
''thought  them  a  cursed  cheat."  "Let  me  advise  you, 
young  man,"  he  added,  "not  to  come  here  with  your  new- 
fangled law  —  you  must  try  your  cases  as  others  do,  by 
the  court  and  jury." 

William  Plumer  thus  describes  the  condition  of  the  courts 
before  the  Revolution : 

"  Under  the  colonial  government,  causes  of  importance 
were  carried  up,  for  decision  in  the  last  resort,  to  the  Gover- 
nor and  Council,  with  the  right,  in  certain  cases  —  a  right 
seldom  claimed  —  of  appeal  to  the  King  in  Council.  As  the 
executive  functionaries  were  not  generally  lawyers,  and 
the  titular  judges  were  often  from  other  professions  than  the 
legal,  they  were  not  much  influenced  in  their  decisions  by 
any  known  principles  of  established  law.  So  much,  indeed, 
was  the  result  supposed  to  depend  upon  the  favor  or  aver- 
sion of  the  court,  that  presents  from  suitors  to  the  judges 
were  not  uncommon,  nor,  perhaps,  unexpected.     On  one 


NEW  ENGLAND  COLONL\L  BAR  137 

occasion,  the  Chief  Justice,  who  was  also  a  member  of 
the  council,  is  said  to  have  inquired  rather  impatiently  of 
his  servant,  what  cattle  those  were  that  had  waked  him  so 
unseasonably  in  the  morning  by  their  lowing  under  his 
window;  and  to  have  been  somewhat  molUfied  by  the  an- 
swer that  they  were  a  yoke  of  sLx-feet  cattle,  which  Col. 

had  sent  as  a  present  to  His  Honor.  '  Has  he? '  said  the 
Judge;  *I  must  look  into  his  case  —  it  has  been  in  court 
long  enough.'  " 

Under  date  of  June  24,  1771,  John  Adams  says: 

"Mr.  Lowell,  who  practised  much  in  New  Hampshire, 
gave  me  an  account  of  many  strange  judgments  of  the 
Superior  Court  at  Portsmouth.  .  .  .  During  the  Revolution, 
the  same  practice  of  going  beyond  the  courts  of  law  for 
redress  was  continued;  and  the  form  which  it  took,  under 
the  Constitution  of  1784,  was  that  of  a  special  act  of  the 
Legislature,  restoring  the  party  to  his  law,  as  it  was  called, 
that  is,  giving  him  a  new  trial  in  the  Superior  Court,  after 
his  case  had  come  to  its  final  decision  in  the  ordinary  course 
of  the  law.  .  .  .  The  supposed  interest  of  lawyers  in  the 
multiphcation  of  suits,  the  litigious  spirit  of  parties,  ever 
eager  to  grasp  at  new  chances  of  success,  and  the  love 
of  power  natural  to  legislative  bodies,  all  combined  to 
render  this  irregularity  in  the  administration  of  justice 
not  unacceptable  to  the  public." 

Belknap  in  his  History,  written  in  1792,  thus  describes 
the  legal  conditions: 

"In  the  administration  of  justice,  frequent  complaints 
were  made  of  partiality.  Parties  were  sometimes  heard 
out  of  court,  and  the  practice  of  watering  the  jury^  was 
familiarly  known  to  those  persons  who  had  much  business 
in  the  law." 

While  the  rude  decisions  of  the  courts,  based  on  common 
sense,  were  not  wholly  without  value  in  their  influence  on 
the  development  of  the  law,^  nevertheless,  before  a  Bench 

1  As  Judge  BeU  said,  in  5.  C.  &*  M.  R.  R.  v.  State  (32  N.  H.  231):  "We 
regard  the  ignorance  of  the  first  colonists  of  the  technicalities  of  the  Common 


138  A  HISTORY  OF  THE  AMERICAN  BAR 

so  little  addicted  to  legal  methods  there  was  small  need 
or  opportunity  for  trained  lawyers;  and  the  Bar  of  New 
Hampshire,  during  the  whole  of  the  Seventeenth  and 
Eighteenth  Centuries,  was  consequently  few  in  number. 
In  the  former  Century  there  was  only  one  educated  lawyer 
in  the  Province,  John  Pickering  of  Portsmouth,  who  was 
born  in  1640  and  died  in  1721. 

In  the  early  Eighteenth  Century,  two  may  be  especially 
mentioned,  —  Mathew  Livermore,  born  in  1703,  a  Harvard 
graduate  of  1722,  who  was  regularly  admitted  to  the  Bar 
in  Portsmouth  in  1731;  at  which  time,  says  John  Adams, 
"there  was  no  regularly  educated  lawyer  in  the  town." 
He  became  Attorney-General  in  1755  and  died  in  1776. 
Wiseman  Claggett,  one  of  the  quaintest  geniuses  of  the 
whole  Colonial  Bar,  was  born  in  172 1,  arrived  in  Portsmouth 
in  1758,  and  was  then  admitted  to  the  Bar  of  the  Superior 
Court.  He  had  been  a  barrister  in  the  Inns  of  Court,  and 
later  a  practising  attorney  in  Antigua  in  the  West  Indies. 
Until  the  Revolution  he  divided  the  business  of  New 
Hampshire  with  Samuel  Livermore  (later  the  Chief  Justice), 
Claggett  receiving  most  of  the  criminal  busmess,  Livermore 
the  ci\al. 

In  1758,  at  the  time  of  the  chartering  of  Dartmouth  Col- 
lege, there  were  only  eight  trained  lawyers  m  New  Hamp- 
shire; and  none  of  them  was  of  such  abihty  as  to  be  retained 
by  President  Wheelock,  he  engaging  as  his  counsel  WiUiam 
Smith  and  William  Smith,  Jr.,  of  New  York,  and  John 
Ledyard  of  Connecticut;  the  head  of  the  Bar,  William 
Parker,  being  legal  adviser  of  Governor  Wentworth. 

There  was  no  regular  Bar  Association  until  after  the 

Law  as  one  of  the  most  fortunate  things  in  the  history  of  the  law,  since, 
while  the  substance  of  the  Common  Law  was  presented,  we  happily  lost  a 
great  mass  of  antiquated  and  useless  rubbish,  and  gained  in  its  stead  a 
course  of  practice  of  admirable  simpUcity." 


NEW  ENGLAND   COLONL\L  BAR  139 

Revolution.  And  to  1785,  the  Bar  continued  small,  not 
exceeding  twenty-nine  in  number,  of  whom  the  following 
lawyers  were  leaders,  —  John  Prentice,^  John  Sullivan,^ 
Benjamin  West,^  John  Pickering,'*  and  Joshua  Atherton.^ 

The  first  legislation  as  to  lawyers  was  in  17 14,  when  an 
act  was  passed  allowing  parties  to  plead  by  attorney,  pro- 
viding an  attorneys'  oath  and  regulating  fees. 

Maine 

In  Maine,  Thomas  Gorges,  the  head  of  the  Colonial 
Government,  was  an  English  barrister,  a  practising  lawyer 
and  the  only  one  in  the  Colony  during  the  Seventeenth 
Century.  The  General  Court  at  first  tried  all  criminal  and 
civil  cases;  later  it  established  two  inferior  courts,  which 
existed  until  1692,  when  the  Colony  was  incorporated  into 
the  Royal  Province  of  Massachusetts,  and  came  under  its 
judicial  system. 

It  was  not  until  1720  that  there  was  a  resident  lawyer 
practising  in  the  Maine  courts  —  Noah  Emery  of  Kittery, 
brought  up  as  a  cooper,  but  who  later  studied  law. 

As  late  as  1770,  the  only  educated  lawj^rs  residing  in 
Maine  were  Da\dd  Sewall,  Theophilus  Bradbury,  John 
Sullivan,  James  SuUivan,  William  Gushing  and  David 
Wyer.e 

*  Bom  in  1747,  Harvard  graduate  of  1766,  studied  with  S.  Livermore, 
Attorney-General  1 787-1793. 

^  Bom  in  1740,  studied  with  S.  Livermore,  Attorney-General  1782-1785, 
U.  S.  District  Judge  1789. 

*  Bom  in  1746,  Harvard  graduate  of  1768,  studied  for  the  ministry, 
admitted  to  the  Bar  1773. 

*  Bom  in  1737,  Harvard  graduate  of  1759,  Chief  Justice  1790-1795, 
U.  S.  District  Judge  1795-1801. 

'  Bom  in  1732,  Harvard  graduate  of  1762. 

'  See  The  Law,  the  Courts  and  Lawyers  of  Maine,  by  William  Willis 
(1863). 


I40  A  HISTORY  OF  THE  AjMERIC\N  BAR 

Rhode  Island 

In  Rhode  Island,  there  was  at  first  no  distinction  between 
the  legislative  and  judicial  branches  of  government.  Under 
the  early  compact  of  1638,  a  judge  and  three  elders  were 
chosen  "who  should  govern  according  to  the  general  rule 
of  the  word  of  God."  The  next  year,  a  Governor  and  eight 
Assistants  formed  the  General  Court,  having  both  judicial 
and  administrative  powers.  When  the  charter  of  1647  was 
granted,  a  President  and  four  Assistants,  one  from  each 
town,  constituted  a  General  Court  of  Trials.  Under  the 
Royal  charter  of  1662-1664  and  until  1 747-1 749,  the  Gov- 
ernor, Deputy-Governor  and  ten  elective  Assistants  exer- 
cised the  judicial  powers.  It  was  not  until  1747  that  the 
judiciary  was  recognized  by  act  of  the  General  Assembly  as 
a  separate  branch  of  the  government.  The  Court  then 
established  consisted  of  a  Chief  Justice  and  four  "judicious 
and  skilful  persons"  chosen  by  the  General  Assembly, 
generally  from  among  the  ten  Assistants  (or  magistrates).^ 

At  no  time  was  knowledge  of  the  law  considered  essential 
to  the  members  of  the  Court;  and  the  judge,  because  of  his 
ignorance,  did  not  even  charge  the  jury.^ 

In  1699,  the  Earl  of  Bellomont,  in  his  report  to  the  Lords 
of  Trade,  said : 

"Thus  courts  of  justice  are  held  by  the 'Governor  and 
Assistants  who  sit  as  judges  therein,  more  for  constituting 
the  court  than  for  searching  out  the  right  of  the  causes 
coming  before  them  or  deHvering  their  opinion  on  points  of 
law  (whereof  it  is  said  they  know  very  Httle).  They  give  no 
directions  to  the  jury  nor  sum  up  the  evidences  to  them, 
pointing  unto  the  issue  which  they  are  to  try.  Their  pro- 
ceedings are  very  unmethodical,  no  wise  agreeable  to  the 

1  Judicial  System  in  Rhode  Island,  by  Amasa  M.  Eaton,  Yale  Law  Journal, 
Vol.  XIV;  Early  Rhode  Island,  by  WQliam  B.  Weeden  (1910). 
*  This  custom  remained  unchanged  in  Rhode  Island  until  1833. 


NEW  ENGLAND   COLONIAL  BAR  141 

course  and  practice  of  the  courts  in  England,  and  many 
times  arbitrary  and  contrary  to  the  laws  of  the  place;  as 
is  affirmed  by  the  attorneys  at  law  that  have  sometimes 
practiced  in  their  court." 

The  first  Chief  Justice  of  Rhode  Island,  Gideon  Cowell, 
in  1747,  was  not  a  lawyer;  the  second,  Joshua  Babcock 
(a  Yale  graduate  of  1724),  was  a  physician.  Stephen 
Hopkins,  Chief  Justice  from  1751  to  1755,  was  a  trained 
and  able  lawyer;  but  most  of  the  judges  during  this  Cen- 
tury were  laymen,  merchants  or  farmers. 

As  in  Massachusetts  and  Connecticut,  little  deference 
was  paid  to  the  Common  Law  of  England,  and  the  lack  of 
legal  education  in  the  judiciary  rendered  the  citing  of 
English  precedents  in  the  courts  of  little  avail.  A  full  code 
of  law  was  adopted  in  1647,  embodying  an  elaborate  classi- 
fication of  crimes,  and  providing  that  "in  all  other  matters 
not  forbidden  by  the  code,  all  men  may  walk  as  their 
conscience  persuades  them."  That  alone  was  declared  to 
be  law  which  was  made  such  by  the  Assembly.  This 
meant  the  exclusion  of  English  law,  when  vmconfirmed  by 
the  Assembly.^ 

Of  the  early  Bar,  little  or  nothing  is  known.  The  earliest 
statutory  reference  to  lawyers  was  in  1647,  when  it  was 
provided  that  a  man  might  "plead  his  own  case  ...  or  make 
his  attorney  to  plead  for  him,  or  may  use  the  attorney 
that  belongs  to  the  court  which  may  be  then  in  town,  to  wit: 
discreet,  honest  and  able  men  for  understanding,  chosen 
by  the  townsmen  of  the  same  town,  and  solemnly  engaged 
by  the  head  officer  thereof  not  to  use  any  manner  of  deceit 
to  beguile  either  court  or  party."  In  1668-1669,  it  was 
enacted  that  any  person  who  was  indicted  might  employ 
an  attorney  to  plead  in  his  behalf.  In  1705,  an  act  was 
passed  requiring  attorneys  to  take  an  oath. 

*  See  Colonial  Records,  Vol.  II,  pp.  42,  147,  157. 


142  A  HISTORY  OF  THE  AMERICAN  BAR 

In  1 718,  an  act  was  passed  limiting  the  number  of  law- 
yers to  be  permitted  to  argue  in  any  case  to  two,  one  of 
them  to  be  a  freeholder  of  the  Colony.  In  1729,  lawyers 
were  forbidden  to  be  deputies,  their  presence  in  the  Assem- 
bly sitting  as  a  Court  of  Appeal  being  "found  to  be  of 
ill  consequence."    This  act  was  repealed,  however,  in  1731. 

The  ofl&ce  of  Attorney-General  was  created  in  1650,  by  an 
act  which  quaintly  declared  that  "because  envy,  the  cut- 
throat of  all  prosperitie,  will  not  fail  to  gallop  with  its  full 
career,  let  the  sayd  attorney  be  faithfully  engaged  and 
authorized  and  encouraged."  Henry  Bull,  who  was  born 
in  1689,  and  elected  Attorney- General  in  1721,  tells  an 
anecdote  of  himself,  which  seems  to  fairly  illustrate  the 
conditions  of  early  law  practise. 

"  When  he  made  up  his  mind  to  practise  law,  he  went  into 
the  garden  to  exercise  his  talents  in  addressing  the  court 
and  jury.  He  selected  five  cabbages  in  one  row  for  judges, 
and  twelve  in  another  row  for  jurors;  after  trying  his  hand 
thus  awhile  he  went  boldly  into  court  and  took  upon  him- 
self the  duties  of  an  advocate,  and  a  little  observation  and 
experience  there  convinced  him  that  the  same  cabbages 
were  in  the  court  house  which  he  thought  he  had  left  in 
the  garden,  —  five  in  one  row  and  twelve  in  another." 

In  1745,  the  first  meeting  of  the  Bar  was  held,  at  which  a 
compact  regulating  practise  and  fees  was  signed  by  Daniel 
Updike,  James  Honyman,  Jr.,  John  Aplin,  John  Walton, 
Mathew  Robinson,  David  Richards,  Jr.,  Thomas  Ward 
and  John  Andrews.  Two  of  the  articles  of  this  compact 
have  a  curious  interest,  as  showing  the  solidarity  of  the 
"fraternity:" 

"  VI. — No  Attorney  to  sign  blank  writs  and  disperse  them 
about  the  colony,  which  practice  it  is  conceived,  would 
make  the  law  cheap  and  hurt  the  business,  without  profiting 
anyone  whatsoever. 


NEW  ENGLAND  COLONIAL  BAR  143 

"  VII.  —  No  Attorney  shall  take  up  any  suit  whatever 
against  a  practitioner  who  sues  for  his  fees,  except  three  or 
more  brethren  shall  determine  the  demand  unreasonable; 
and  then,  if  he  will  not  do  justice,  the  whole  fraternity  shall 
rise  up  against  him." 

Few  facts  are  known  as  to  the  personnel  of  the  Bar  in  the 
Eighteenth  Century,  and  almost  the  only  lawyers  with  any 
legal  training  were  the  Attorneys-General,  —  Daniel  Up- 
dike, in  1 721;  James  Honeyman,  in  1732;  Augustus  John- 
son, in  1757;^  Oliver  Arnold,  in  1766;^  Henry  Marchant, 
who,  born  in  174 1,  studied  law  with  the  learned  Judge  Trow- 
bridge of  Massachusetts,  became  Attorney-General  in  1770, 
and  United  States  District  Judge  in  1789;  and  William 
Channing,  born  in  1727,  a  graduate  of  Harvard  in  1747,  a 
leading  lawyer  at  the  time  of  the  Revolution,  and  one  of 
the  signers  of  the  Declaration  of  Independence,  Attorney- 
General  in  1777. 

After  the  War,  James  M.  Vamum,  born  in  1749,  graduate 
of  Brown  in  1769,  and  a  student  of  law  in  the  office  of 
Oliver  Arnold,  was  one  of  the  leaders  of  the  Bar.  He  was  the 
counsel  for  the  defendant  in  Trevett  v.  Weeden  in  1786,  one 
of  the  first  cases  in  which  an  American  court  of  law  assumed 
to  pass  upon  the  constitutionality  of  a  legislative  act. 

The  real  Bar  of  Rhode  Island,  however,  began  with 
James  BurrilF  and  Tristam  Burges,^  at  the  opening  of  the 
Nineteenth  Century. 

*  Bom  about  1730.  *  Bom  in  1726. 

^  Bom  1772,  graduate  of  Brown  College  in  178S,  studied  in  oflBce  of 
Theodore  Foster  and  later  that  of  David  Howell  (afterwards  U.  S.  District 
Judge),  admitted  to  practise  in  1791,  Chief  Justice  1816-1817. 

*  Bom  1770,  studied  at  Brown  College  1793-1797,  admitted  to  the  Bar 
in  1809,  Chief  Justice  1817-1818. 

In  his  Memoirs  of  Tristam  Biirges  (1835),  Henry  L.  Bowen  says,  "BurriU 
has  no  superior  in  his  native  State,  and  few  in  any  section  of  the  Union." 

Contemporary  with  Burrill  and  Burges  were  Ashur  Robbins,  William 
Hunter  and  Benjamin  Hazard. 


144  A  HISTORY  OF  THE  AMERICAN  BAR 

NOTE 

To  Connecticut  Text 

See,  for  authorities  in  general: 

Roger  Ludlow,  by  John  M.  Taylor  (1900). 

History  of  the  Judicial  System  of  New  England,  by  Conrad  Reno 

(1900). 
Oliver  Ellsworth,  by  William  G.  Brown  (1905). 
Judicial  and  Civil  History  of  Conn.,  by  Dwight  Loomis  and  J.  G. 

Calhoun  (1895). 
Preface  to  Kirby's  Reports. 
Preface  to  Root's  Reports. 

Lives  of  the  Chief  Justices  of  the  U.  S.,  by  H.  Flanders. 
Roger  Sherman,  by  Lewis  Henry  Boutelle  (1896). 
Phineas  Lyman,  in  Loyalists  of  the  American  Revolution,  by 

Lorenzo  Sabine  (1864). 
Roger  Minott  Sherman,  by  William  A.  Beers  (1882). 
Biography  of  the  Signers  of  the  Declaration  of  Independence,  by 

John  Sanderson  (1820-1827). 
Yale  Men  as  Writers  on  Law  and  Government,  by  S.  E.  Baldwin, 

Yale  Law  Journal,  Vol.  XL 
Yale  in  its  Relation  to  Law,  by  Thomas  Thacher,  Yale  Law 

Journal,  Vol.  XL 
The  Supreme  Court  of  Connecticut,  by  S.  E.  Baldwin,  in  The 

Supreme  Courts  of  the  States  and  Provinces  (1897). 
Life  of  Jonathan  Trumbull,  by  J.  W.  Stuart  (1859). 

To  New  Hampshire  Text 

History  of  New  Hampshire,  by  Jeremy  Belknap  (1792). 
Judicial  History  of  New  Hampshire  before  the  Revolution  —  Law 

Reporter,  Vol.  XVIII,  301. 
Bench  and  Bar  of  New  Hampshire,  by  C.  H.  Bell  (1894). 
Life  of  Jeremiah  Mason,  by  George  S.  Hillard  (1873). 
Life  of  Jeremiah  Smith,  by  John  H.  Morison  (1845). 
Review  of  Life  of  Jeremiah  Smith  —  Law  Reporter,  Vol.  VIII. 
Life  of  Charles  Marsh,  by  James  Barret  (1871). 
Address  by  David   Cross,  in  Southern  New  Hampshire,  Bar 

Assoc.  Proc,  Vol.  I. 


NEW  ENGLAND   COLONLVL  BAR  145 

Samuel  Livermore,  by  Charles  R.  Corning,  Grafton  &"  Coos  Co. 

Bar  Assoc.  Froc.  (1888). 
Arthur  Livermore,  by  Ezra  S.  Stearns,  Grafton  6*  Coos  Co.  Bar 

Assoc.  Proc.  (1893). 
Life  of  William  Plumer,  by  William  Plumer,  Jr.  (1856). 
Parker,  J.,  in  13  New  Hampshire  Reports,  536,  557,  55S,  560. 
New  Hampshire  as  a  Royal  Province  —  Col.  Univ.  Studies  in 

History,  Economics  and  Public  Law,  Vol.  XXIX  (1908). 
Memoir  of  Wiseman  Clagett,  in  N.  H.  Hist.  Coll.,  Vol.  Ill  (1832). 
Sketch  of  Hon.  S.  Livermore,  in  N.  H.  Hist.  Coll.,  Vol.  V  (1837). 
The  Dartmouth  College  Cases,  by  John  M.  Shirley  (1879). 


To  Rhode  Island  Text 

Gleanings  from  Judicial  History  of  Rhode  Island,  by  Thomas 

Duxgee,  R.  /.  Hist.  Soc.  Coll.,  No.  18. 
History  of  Rhode  Island,  by  Samuel  G.  Arnold  (1859). 
Memoirs  of  the  Rhode  Islaiui  Bar,  by  Wilkins  Updike  (1842). 
Robert   Lightfoot,    in   Loyalists   of  American   Revolution,   by 

Lorenzo  Sabine. 
TJie  Judicial  System  in  Rhode  Island,  by  Amasa  M.  Eaton, 

Yale  Law  Journal,  Vol.  XIV. 
The  Supreme  Court  of  Rhode  Island  —  Green  Bag,  Vol.  II. 
The  Supreme  Court  of  Rhvde  Island,  by  W.  P.  Sheffield. 
State  of  Rhode  Island  and  Providence  Plantations  at  End  of  the 

Century,  edited  by  Edward  Field  (1902). 


CHAPTER  VII 

THE  LAW  AND  LAWYERS  IN  ENGLAND  IN  THE 
EIGHTEENTH  CENTURY 

The  Eighteenth  Century  in  England  was  a  period  in 
which  the  law  itself  was  being  rapidly  made,  and  great 
judges  were  making  it. 

In  1689,  Sir  John  Holt  was  appointed  Chief  Justice  of 
the  Court  of  King's  Bench;  and  in  1704  (a  year  before  the 
birth  of  Lord  Mansfield),  he  gave  forth  his  epochal  deci- 
sion in  Coggs  V.  Barnard  (2  Lord  Raym.  909).  This  was 
eight  years  before  the  first  legally  trained  American  lawyer 
took  his  place  on  the  Massachusetts  Bench,  three  years 
after  the  first  lawyer  sat  on  the  Pennsylvania  Bench,  and 
five  years  before  the  first  lawyers  were  formally  licensed 
in  New  York. 

In  1756,  Sir  William  Murray,  Lord  Mansfield,  became 
Lord  Chief  Justice  of  England.  This  was  the  year  when 
John  Adams  began  to  study  law,  four  years  before 
Patrick  Henry  was  admitted  to  the  Bar,  and  while  Johrr 
Rutledge  was  studying  in  the  Temple. 

The  Leading  Cases  (so  called  by  the  text-book  writers 
of  the  Nineteenth  Century)  were,  between  1700  and  1785, 
coming  fresh  from  the  printing  press  each  year.  Cases, 
now  familiar  to  lawyers  and  law  students  as  historical 
landmarks,  were  then  of  vivid  interest  to  the  practising 
lawyers  of  the  American  Colonies. 

Thus  in  171 1  came  the  famous  case  on  restraint  of  trade, 


LAW  AND  LAWYERS  IN  ENGLAND  147 

Mitchell  V.  Reynolds  (i  P.  Wms.  181);  this  was  at  the  time 
when  the  whole  Bar  of  Pennsylvania  consisted  of  four 
lawyers.  In  17 19  came  the  case  of  Cumber  v.  Wane  (i 
Strange,  426),  involving  the  doctrine  of  consideration. 
In  1722  came  Armory  v.  Delamire  (i  Strange,  504),  the 
chimney  sweep  and  the  jeweller  case;  this  was  a  year  before 
the  birth  of  William  Livingston  in  New  York,  three  years 
before  the  birth  of  George  Wythe  in  Virginia  and  five 
years  after  the  birth  of  the  first  great  Pennsylvania  lawyer, 
Benjamin  Chew.  In  1750  came  Penn.  v.  Lord  Baltimore 
(i  Ves.  444);  this  was  two  years  after  the  foundation  of 
the  first  Bar  Association  in  New  York.  In  1773  came 
Scott  v.  Shepard  (2  W.  Bl.  892),  the  Squib  case,  as  to  actions 
of  trespass;  in  1789,  Pasley  v.  Freeman  (3  T.  R.  51),  estab- 
lishing the  law  of  deceit. 

In  these  years,  also,  occurred  the  great  State  trials,  like 
those  of  the  Jacobites,  Lord  Kilmarnock,  Lord  Balmerino 
and  Lord  Lovat,  for  treason,  before  Lord  Hardwicke  in  the 
House  of  Lords  in  1746;  the  trial  of  John  Wilkes  for  sedi- 
tious libel,  before  Lord  Camden  in  the  Court  of  Common 
Pleas,  i«n  1763;  Rex  v.  Wood/all,  in  1770,  as  to  the  pubUca- 
tion  of  the  Junius  letters,  the  trial  of  Lord  George  Gordon 
in  1 781;  the  famous  legal  battle  on  the  law  of  Hbel,  in  the 
trial  of  the  Dean  of  St.  Asaphs,  in  1783;  the  beginning  of 
the  impeachment  trial  of  Warren  Hastings,  in  1787. 

The  status  of  Common  Law  in  England,  as  it  was  when 
Lord  Mansfield  came  on  the  bench,  is  thus  described  by 
Lord  Campbell: 

"This  system  was  not  at  all  badly  adapted  to  the  con- 
dition of  England  in  the  Norman  and  early  Plantagenet 
reigns,  when  it  sprang  up,  —  land  being  then  the  only 
property  worth  considering,  and  the  wants  of  society  only 
requiring  rules  to  be  laid  down  by  public  authority  for 
ascertaining  the  different  rights  and  interests  arising  out 
of  land,   and  determining  how  they  should  be  enjoyed, 


148  A  HISTORY  OF  THE  AMERICAN  BAR 

alienated,  and  transmitted  from  one  generation  to  another. 
In  the  reign  of  George  II,   England  had  grown  into  the 
greatest  manufacturing   and   commercial   country  in   the 
world,   while  her  jurisprudence  had  by  no  means  been 
expanded  or  developed  in  the  same  proportion.    The  legis- 
lature had  Uterally  done  nothing  to  supply  the  insufficiency 
of  feudal  law  to  regulate  the  concerns  of  a  trading  popu- 
lation; and  the  Common  Law  judges  had,  generally  speak- 
ing, been  too  unenlightened  and  too  timorous  to  be  of 
much  service  in  improving  our  code  by  judicial  decisions. 
Hence,   when  questions   necessarily   arose   respecting^  the 
buying  and  selHng  of  goods,  —  respecting  the  affreight- 
ment of  ships,  respecting  marine  insurances,  —  and  respect- 
ing bills  of  exchange  and  promissory  notes,  no  one  knew 
how  they  were  to  be  determined.    Not  a  treatise  had  been 
published  upon  any  of  these  subjects,  and  no  cases  respect- 
ing them  were  to  be  found  in  our  books  of  reports,  —  which 
swarmed  with  decisions  about  lords  and  villeins,  —  about 
marshaling  the  champions  upon  the  trial  of  a  writ  of  right 
by  battle,  —  and  about  the  customs  of  manors,  whereby 
an  unchaste  widow  might  save  the  forfeiture  of  her  dower 
by  riding  on  a  black  ram  and  in  plain  language  confessing 
her  offense.    Lord  Hardwicke  had  done  much  to  improve 
and  systematize  Equity.  .  .  but  proceedings  were  still  car- 
ried on  in  the  courts  of  Common  Law  much  in  the  same  style 
as  in  the  days  of  Sir  Robert  TresiHan  and  Sir  WilHam  Gas- 
coigne.     Mercantile  questions  were  so  ignorantly  treated 
when  they  came  into  Westminster  Hall,  that  they  were 
usually  settled  by  private  arbitration  among  the  merchants 
themselves.    If  an  action  turning  upon  a  mercantile  ques- 
tion was  brought  in  a  court  of  law,  the  judge  submitted  it 
to  the  jury,  who  determined  it  according  to  their  own 
notions  of  what  was  fair,  and  no  general  rule  was  laid  down 
which  could  afterwards  be  referred  to  for  the  purpose  of 
setthng  similar  disputes."  ^ 

With  the  latter  half  of  the  Century,  however,  began  the 
modem  Common  Law  of  business  and  personal  relations, 
as  distinguished  from  the  old  feudal  Common  Law,  con- 
1  Campbell's  Lives  of  the  Chief  Justices,  Vol.  Ill,  p.  299. 


LAW  AND  LAWYERS  IN  ENGLAND  149 

fined  as  it  was  to  questions  of  realty  and  pleading.  The 
wide  range  of  contract  law  began  to  be  opened  out.  The 
doctrines  of  the  laws  of  bills  and  notes,  insurance  and 
maritime  commerce  became  fixed.  The  law  of  evidence, 
none  of  the  present  rules  of  which,  except  that  excluding 
hearsay,  were  well  established  prior  to  1688,  was  becoming 
well  developed.  On  the  other  hand,  the  law  of  torts  was 
hardly  in  existence  before  1800;  there  were  no  negligence 
cases;  the  great  contests  of  Erskine  and  Fox  on  the  law 
of  libel  had  not  begun.  The  law  of  business  corporations 
did  not  exist. 

It  was  not  until  1733,  that  Sir  Peter  King,  Lord  Chan- 
cellor, finally  prevailed  upon  Parliament  to  provide  that 
the  Enghsh  language  should  thenceforth  be  used  in  all 
law  proceedings,  although  Lord  Chief  Justice  Raymond 
and  all  other  judges  had  opposed  the  change. 

Coincident  with  the  opinions  on  modem  Common  Law 
had  been  the  advent  of  the  first  law  reports  of  anything 
like  modem  accuracy  —  Lord  Raymond's  Reports,  Salkcld 
and  Comyns  (of  indifferent  worth  but  covering  Lord  Holt's 
career);  Burrow's  Reports  (1756-1772),  Cowper  (1774-1778) 
covering  Lord  Mansfield's  decisions;  and  Terrn  Reports 
and  Durnford  and  East  (i 785-1800)  covering  the  term  of 
Chief  Justice  Kenyon. 

Of  Chancery  reports,  those  of  Peere  Williams  (1695- 
1735)  were  the  chief  source  of  study  in  the  early  part  of 
the  Century.  Atkyns,  Vesey,  Sr.  and  Ambler  included  the 
decisions  of  the  greatest  of  all  the  Chancellors,  Philip 
Yorke  (Lord  Hardwicke)  (1736-1756);  and  Cox  and 
Vesey,  Jr.  reported  the  decisions  of  Charles  Pratt  (Earl 
Camden)  and  of  Lord  Thurlow. 

Nevertheless,  even  as  late  as  1776,  hardly  more  than 
one  hundred  and  fifty  volumes  of  reports  were  in  existence 
in  England;  and  probably  not  one-half  of  these  had  crossed 


1=50 


A  HISTORY  OF  THE  AMERICAN  BAR 


the  Atlantic;  while  hardly  thirty  were  in  famihar  use  in 
America. 

Of  law  books  of  importance,  the  following  were  published 
during  this  Century:  Bohun's  Instituiio  Legalis,  or  Intro- 
duction to  the  Study  and  Practise  of  the  Laws  of  England, 
appeared  in  1708.  Hale's  History  and  Analysis  of  the 
Common  Law  of  England  was  first  published  in  17 13.  In 
1 7 16  appeared  Hawkins'  Pleas  of  the  Crown,  and  Foster's  in 
1762;  lAWy's  Register  appeared  in  1719;  Wood's  Institutes 
in  1722;  and  Francis'  Maxims  in  Equity  in  1728.  Bacon's 
Abridgment  was  published  in  1736;  Jacob's  Law  Dictionary 
in  1729;  Bohun^s  Declarations  ini  J  2>3',  Gilbert' a  Ejectments 
in  1734;  Viner's  Digest  from  1742  to  1753;  Comyns'  Di- 
gest appeared  between  1762  and  1767;  Rutherforth's /^^^^i- 
tutes  of  Natural  Law  from  1 754-1 756;  Fearne's  Contingent 
Remainders  in  1772;  Reeves'  History  of  English  Law  to  the 
Time  of  Elizabeth  in  1 787.  Of  Blackstone's  Commentaries,  in 
1765,  mention  will  be  made  later.  At  the  very  end  of  the 
Century  appeared  Jones'  Bailments  in  1781;  Wooddeson's 
Elements  of  Jurisprudence  in  1783;  Park's  Marine  Insur- 
ance in  1787;  Powell's  Contracts  in  1790;  Bayley's  Bills 
and  Notes  in  1789;  Chitty's  Bills  and  Notes,  and  Tidd's 
Practice  in  lygg;  and  Fonblanque's  Equity  m  1797.^ 

This  list,  after  all,  is  a  scanty  one;  but  in  America  few 
of  these  text-books  were  known,  and  fewer  still  were  to  be 
obtained. 

The  education  of  a  law  student  in  England  during  this 
Century  was  of  the  most  meagre  description.  The  old 
mootings  and  readings  in  the  Inns  of  Courts  had  practically 
died  out. 

*  Up  to  the  publication  of  Joseph  Story's  books  on  Equity,  Fonblanque's 
Equity  was  for  one  hundred  years  the  best  elementary  book  on  equity  in  use 
in  America.  "It  finally  expired  under  the  weight  of  its  own  notes,"  says 
J.  C.  Marvin  in  his  Legal  Bibliography. 


LAW  AND  LAWYERS  IN  ENGLAND  151 

Roger  North  wrote  some  years  before  his  death  (which 
occurred  in  1733)  a  Discourse  on  the  Study  of  the  Laiv,  in 
which  he  said:  ^ 

"Of  all  the  professions  in  the  world  that  pretend  to 
book  learning,  none  is  so  destitute  of  institution  as  that 
of  the  Common  Law.  Academick  studies  which  take  in 
that  of  the  civil  law,  have  tutors  and  professors  to  aid 
them,  and  the  students  are  entertained  in  colleges  under 
a  discipline,  in  the  midst  of  societies,  that  are,  or  should 
be,  devoted  to  study;  which  encourages,  as  well  as  demon- 
strates, such  methods  in  general  as  everyone  may  easily 
apply  to  his  own  particular  use.  But  for  the  Common 
Law,  however,  there  are  societies  which  have  the  outward 
show  or  pretense  of  Collegiate  Institution,  yet  in  reahty 
nothing  of  that  sort  is  now  to  be  found  in  them ;  and  whereas 
in  more  ancient  times  there  were  exercises  used  in  the 
Hall,  they  were  more  for  probation  than  for  institution; 
now  even  those  are  shrunk  into  mere  form,  and  that  pre- 
served only  for  conformity  to  rules,  that  gentlemen  by 
tale  of  appearances  in  exercises  rather  than  by  any  sort 
of  performances  might  be  entitled  to  be  called  to  the  Bar." 

And  it  has  been  recently  said : 

"There  was  really  no  legal  education  at  the  Inns  of  Court 
in  the  year  1800.  In  the  days  of  Queen  Elizabeth  and 
James  I  regular  courses  of  study  were  prescribed,  attendance 
at  moots  and  in  hall  was  insisted  on  and  discipline  was 
vigorously  maintained.  But  that  had  all  fallen  into  mis- 
use or  lingered  only  in  a  few  antiquated  forms.  There 
were  still  a  few  so  called  exercises.  A  student  after  dining 
in  hall  was  provided  with  a  printed  form  of  cjuestions. 
Armed  with  this  he  would  tremblingly  approach  the  dais 
and  say  to  the  first  good-natured-looking  bencher  whose 
eyes  he  could  catch,  'If  I  were  seized  in  fee  of  Blackacre.' 
The  bencher  smiled  and  bowed.  The  student  continuing 
the  enunciation  of  the  problem  concluding  boldly  with 

*  This  discourse  was  not  published  until  1824.  See  Early  History  of  Legal 
Studies  in  England,  by  Joseph  Walton,  Amer.  Bar  Ass.  Proc.,  Vol.  XXII 
(1S99). 


152  A  HISTORY  OF  THE  AMERICAN  BAR 

these  words  which  were  not  on  the  paper,  *I  maintain  the 
widow  shall  have  her  dower.'  The  bencher  bowed  again 
and  the  student  retired  having  'kept  his  exercise.'  Any 
student  who  had  eaten  the  prescribed  number  of  dinners 
and  paid  his  fees  was  made  a  counsellor  at  law;  the  cere- 
mony was  conducted  like  the  return  of  stolen  goods  'with- 
out any  questions  being  asked;'  he  need  never  have 
read  a  single  page  of  any  law  book.  Samuel  Ireland  in  his 
historical  account  of  the  Inns  of  Court  published  in  1800 
adverts  to  the  'ceremony  of  mootyng'  as  'a  custom  long 
since  in  disuse  except  in  New  Inn  for  the  benefit  of  students 
of  the  Middle  Temple  where  about  a  year  and  a  half  since 
we  are  informed  a  mootyng  took  place  to  the  no  small 
diversion  of  the  passers  by.' 

"The  students  had  in  fact  to  teach  each  other.  There 
was  in  Tidd's  office  a  society  which  met  once  a  week  ex- 
clusively for  the  discussion  of  legal  questions.  It  was 
modelled  upon  the  plan  of  the  Court  at  Westminster, 
with  a  Chief  Justice  and  counsel."^ 

Students  of  the  Eighteenth  Century  gave  their  time 
largely  to  the  pleasures  of  London.  The  Spectator  of 
March  24,  1710,  speaks  of  that 

"numberless  branch  of  peaceable  lawyers  —  those  young 
men  who  being  placed  in  the  Inns  of  Court  in  order  to 
study  the  laws  of  their  country  frequent  the  playhouse 
more  than  Westminster  Hall  and  are  seen  in  aU  public 
assemblies  except  in  a  court  of  justice." 

As  stated  above,  no  qualifications  were  required  by  the 
benchers  of  the  Inns  of  those  whom  they  were  supposed  to 
examine  to  be  called  as  barristers,  except  the  proof  that 
they  had  kept  twelve  terms  by  eating  the  requisite  number 
of  dinners  in  the  Inn. 

Some  few  students,  like  Lord  Thurlow  about  1750,  were 
placed  in  the  ofi&ce  of  a  solicitor  where  they  learned  how 
actions  were  commenced  and  conducted,  together  with 
the  practise  of  the  courts. 

^  A  Century  of  Law  Reform,  Chap.  I,  by  W.  B.  Odgers  (1901). 


LAW  AND  LAWYERS  IN  ENGLAND  153 

It  was  not,  however,  until  the  latter  part  of  the  Eighteenth 
Century  that  the  regular  practise  began  of  studying  in 
the  office  of  some  distinguished  special  pleader.  This 
"pupiUzing  system"  was  introduced  by  the  special  pleaders, 
Thomas  Warren  and  Mr.  (later  Mr.  Justice)  Buller;  and 
in  their  offices  and  in  those  of  George  Wood,  Tindal  and 
Tidd  were  educated  many  of  England's  most  famous 
judges;  Erskine,  Copley  (Lord  Lyndhurst),  Cottenham, 
Campbell,  Brougham,  Parke  (Lord  Wenleysdale),  Abbott 
(Lord  Tenterden),  and  Denman. 

The  life  of  a  student  in  such  an  office  is  well  described 
by  Lord  Campbell  in  1803: 

**I  got  a  letter  from  Mackintosh  to  Tidd  the  most  emi- 
nent special  pleader  in  England.  With  him  I  begin  my 
studies  in  arte  placitandi  next  week.  He  has  six  or  a  dozen 
pupils  besides,  dashing  young  fellows.  .  .  .  The  terms 
of  all  special  pleaders  are  the  same,  viz.:  one  hundred 
guineas  for  one  year  or  two  hundred  guineas  for  three 
years.  Tidd  is  by  far  the  first  man  in  this  line.  He  has 
constantly  from  ten  to  fifteen  pupils.  ...  It  is  unpossible 
for  you  to  form  any  conception  of  the  idleness  of  most  of  the 
nascent  plea  drawers.  They  drop  into  the  office  for  half 
an  hour  on  their  way  to  Bond  Street.  For  weeks  and 
months  they  remain  away  altogether.  When  they  are 
assembled  the  subjects  discussed  are  not  cases  and  prece- 
dents but  the  particulars  of  a  new  fashion  in  dress  or  the 
respective  merits  of  the  Young  Chicken  and  Signora  Cras- 
sini.  .  .  .  Nothing  but  the  irresistible  motives  which  spur 
me  on  could  enable  me  to  combat  the  disgust  inspired  by 
special  pleading.  It  is  founded  upon  reason  but  rude,  rude 
is  the  superstructure.  This  however  is  now  a  necessary 
post  in  carrying  on  your  professional  advances.  The  four 
judges  who  preside  in  the  Court  of  King's^ Bench  all  prac- 
tised as  special  pleaders.  ...  I  continue  to  go  regularly 
at  eleven  and  stay  till  four.  ...  In  Tidd's  office  there 
was  a  society  which  met  weekly  for  the  discussion  of  jurid- 
ical questions.  This  consisted  of  his  pupils  for  the  time 
being  (among  them  Pepys)  and  any  former  pupils  who 


IS4  A  HISTORY  OF  THE  AMERICAN  BAR 

chose  to  attend  (among  them  Denman  and  Copley).  .  .  . 
Special  pleaders  in  general  are  not  at  the  Bar.  One  or 
two  who  remain  pleaders  permanently  are  considered  as 
something  between  attorneys  and  barristers  but  the  com- 
mon way  is  for  a  young  man  to  plead  a  few  years  under 
the  bar  as  they  call  it  before  being  called.  It  is  easier  to  get 
this  kind  of  business  than  briefs  in  court  and  you  thus 
gradually  form  and  extend  your  connections.  —  Tidd  is 
a  man  of  very  low  origin.  —  He  was  clerk  to  an  eminent 
man  in  this  Hne  and  his  master  dying  he  set  up  for  himself.  — 
He  pubHshed  a  Practice  of  the  Court  of  King's  Bench  which 
has  passed  through  several  editions  and  gained  him  high 
celebrity.  He  makes  between  two  thousand  and  three 
thousand  pounds  a  year.  ...  He  takes  very  Httle  pains 
with  his  pupils.  He  comes  about  one  o'clock,  saying  'How 
d'ye  do'  as  he  passes  into  his  own  room,  remains  there 
until  four  or  five  correcting  what  has  been  drawn,  nods 
to  any  straggler  who  is  still  remaining  and  returns  to 
Vauxhall  for  the  day.  His  office  however  for  a  man  really 
desirous  and  determined  to  improve  himself  is  in  my  mind 
far  the  best  in  London.  You  see  here  such  a  quantity 
and  such  a  variety  of  business  that  you  may  learn  more 
in  six  months  than  by  reading  or  hearing  lectures  for  seven 
years."  ^ 

Of  the  course  pursued  by  a  student  who  could  not  enter 
a  special  pleader's  oj6&ce,  Campbell's  account  of  the  stu- 
dent days  of  John  Scott  (Lord  Eldon)  gives  the  best  idea:  ^ 

"The  custom  having  been  introduced  for  law  students 
to  become  pupils  of  a  special  pleader  or  equity  draughts- 
man, Mr.  Scott  would  have  been  glad  to  have  conformed 
to  it  if  the  state  of  his  finances  would  have  enabled  him 
to  pay  the  usual  fee  of  a  hundred  guineas.  .  .  .  Mr.Duane, 
an  eminent  Catholic  conveyancer  agreed  to  let  him  have 
the  run  of  his  chambers  for  six  months  without  a  fee. 
(Conveyancing  was  chiefly  in  the  hands  of  Roman  Catholics, 
being  prevented  from  being  called  to  the  Bar  they  prac- 

1  Life  of  Lord  Campbell,  Vol.  I. 

,«  Campbell's  Lives  of  the  Lord  Chancellors,  Vol.  IX. 


LAW  AND  LAWYERS  IN  ENGLAND  155 

tised  successfully  in  Chambers.)  ...  To  supply  the  defi- 
ciency arising  from  his  not  having  been  with  a  special 
pleader  or  equity  draughtsman  he  copied  all  the  AISS  forms 
he  could  lay  his  hands  upon. 

"He  went  through  a  systematic  course  of  reports  and 
coming  down  to  a  Reporter  of  such  low  credit  as  Vernon 
he  could  tell  the  names  of  most  of  the  cases  reported  with 
the  volume  and  page  where  they  could  be  found. 

"We  are  not  told  that  he  ever  dipped  into  the  Code, 
the  Pandects,  or  the  Institutes  of  Justinian;  or  that  he  found 
any  pleasure  in  Pujjendorf  or  Grotius  or  that  he  ever  formed 
the  slightest  acquaintance  with  D'Agnesseau  or  Pothier. 
Nor  in  any  of  his  arguments  at  the  Bar  of  judgments  from 
the  Bench  does  he  as  far  as  I  am  aware  ever  refer  to  the 
civil  law  or  any  foreign  writer  as  authority  or  by  way  of 
illustration." 

The  course  of  reading  advisable  for  a  student  either  in 
his  own  or  a  special  pleader's  chambers  was  stated  by  Lord 
Chief  Justice  Reeves  in  1787  as  follows: 

"Read  Wood's  Institutes  cursorily  and  for  explanation 
of  the  same,  Jacob's  Dictionary.  Next  strike  out  what 
lights  you  can  from  Bohun's  Institutio  Legalis,  and  Jacob's 
Practising  Attorney's  Companion,  and  the  like,  helping 
yourself  by  Indexes.  Then  read  and  consider  Littleton's 
Tenures  without  notes  and  abridge  it.  Then  venture  on 
Coke's  Commentaries.  After  reading  it  once,  read  it  again, 
for  it  will  require  many  readings.  Abridge  it.  Common- 
place it.  Make  it  your  own,  applying  to  it  the  faculties 
of  your  mind.  Then  read  Sergeant  Hawkins  to  throw 
light  on  Lord  Coke.  Then  read  Wood  again  to  throw 
light  on  Sergeant  Hawkins.  And  then  read  the  statutes 
at  large  to  throw  light  on  Mr.  Wood." 

In  spite  of  this  elaborate  course  for  law  students,  the 
BihlioiJieca  Legum  Angliae  by  John  Worrall  and  Edward 
Brooke,  published  in  1788,  mentions  as  the  only  books 
expressly  intended  for  students;  Blackstone,  Eunomus  or 
Dialogues  upon  the  Law  and  Constitution  of  England;  and 


IS6  A  HISTORY  OF  THE  AMERICAN  BAR 

the  Elcjnents  of  Jurisprudence  by  Dr.  Wooddeson  (Black- 
stone's  successor  as  Vinerian  Professor  at  Oxford).  To 
these  may  be  added  Francis  S.  Sullivan's  Lectures  on  the 
Constitution  and  Laws  of  England,  published  in  1776;  and 
a  little  book,  much  used,  Thomas  Branch's  Principia 
Legis  et  Equitatis. 

Undoubtedly  the  real  education  gained  by  a  law  student 
in  the  Eighteenth  Century  was  through  attendance  at  the 
various  courts. 

Thus,  it  is  said  that  Lord  Mansfield's  chief  resource,  in 
1730  when  studying  at  Lincoln's  Inn,  was  in  listening  to 
the  judgments  of  Lord  Chief  Justice  Raymond  in  King's 
Bench.  To  such  an  extent  was  he  influenced  by  this 
method  of  gaining  a  liberal  knowledge  of  the  law  that 
later,  when  he  became  a  judge  himself,  he  was  in  the  habit, 
in  giving  his  judgments,  of  explaining  the  intricacies  of  the 
cases  before  him  and  the  reasons  of  his  judgments  "for 
the  sake  of  the  students."  ^  He  even  caused  a  box  in  the 
Court  of  King's  Bench  to  be  set  apart  for  students  to 
which  students  and  barristers  "flock  by  scores." 

So  too,  it  was  said  of  John  Scott  (Lord  Eldon),  that 
"he  diligently  attended  the  courts  in  Westminster  Hall 
(1775)  with  his  note  book  in  his  hand.  Lord  Bathurst 
presiding  in  the  Court  of  Chancery,  from  whom  Kttle  was 
to  be  learned,  he  took  his  place  in  the  students'  box  in  the 
Court  of  King's  Bench,  where  Lord  Mansfield  shone  in 
the  zenith  of  his  fame." 

Dr.  Johnson  said  to  Boswell:  "You  must  take  care  to 
attend  constantly  in  Westminster  Hall,  both  to  mind  your 
business,  as  it  is  almost  all  learnt  there  (for  nobody  reads 
now),  and  to  show  that  you  want  to  have  business." 

*  Campbell's  Lives  oj  the  Lord  Chief  Justices;  Life  of  Lord  Campbell, 


CHAPTER  VIII 

A  COLONIAL  lawyer's  EDUCATION 

Acquisition  of  the  law  is  difficult  without  ready  means 
of  access  to  the  books  of  the  law  and  these  were  sadly  lack- 
ing in  the  American  Provinces. 

Of  the  reports  published  in  England  by  the  time  of  the 
American  Revolution  (not  over  one  hundred  and  fifty  in 
number)  hardly  more  than  thirty  were  in  familiar  use  on 
this  side  of  the  Atlantic;  and  the  number  of  text-books 
accessible  was  even  smaller.  Practically  all  the  law  books 
used  in  the  Colonies  were  imported  from  England. 

Although  printing  had  begun  in  the  Colonies  as  early  as 
1638-1639,  when  Stephen  Daye  prmted,  at  Cambridge,  The 
Oath  of  a  Freeman,  the  vast  proportion  of  all  books  printed, 
from  that  date  down  to  the  American  Revolution,  was  of 
a  religious  or  historical  nature.  A  careful  examination  of 
elaborate  American  Bibliographies  discloses  only  thirty- 
three  law  books  printed  in  America  prior  to  1776,  includ- 
ing in  this  number  at  least  eight  repeated  editions  of  the 
same  book.^ 

Most  of  these  books  were  manuals  for  use  of  justices  of 
the  peace,  sheriffs  and  other  petty  officers,  and  treatises 
on  the  general  rights  of  EngHshmen,  and  especially  of 
juries. 

1  See  the  monumental  work  of  Charles  Evans,  American  Bibliography, 
Volumes  I,  II,  HI  (1893),  and  Isaiah  Thomas,  History  of  Printing  in  America, 
published  in  Vol.  VI  of  American  Antiquarian  Society  Proceedings  (1874'). 


is8  A  HISTORY  OF  THE  AMERICAN  BAR 

The  first  seven  law  books  printed  fairly  illustrate  the 
whole  list. 

i6So  —  Reasons  for  Indictment  of  the  Duke  of  York,  Presented 
to  the  Gravid  Jury  of  Middlesex  Saturday  June  26,  1680 
(Boston). 

1693  —  The  Englishman's  Right,  A  Dialogue  between  a  Bar- 
rister at  Law  and  a  Juryman,  plainly  setting  forth  the 
antiquity,  the  excellent  designed  use  and  office  and  just  privi- 
leges of  juries  by  the  law  of  England,  by  Sir  John  Hawles 
(Boston). 

1705  — Lex  Mercatoria  Or  the  Just  Rules  of  Commerce  Declared. 
And  Offences  against  the  Rules  of  Justice  in  the  Dealings  of 
men  with  one  another  selected,  by  Cotton  Mather  (Boston). 

1 7 10  —  The  Constable's  Pocket  Book:  Or  a  dialogue  between  an 
old  Constable  and  a  new,  being  a  guide  in  their  keeping  the 
peace,  by  Nicholas  Boone  (Boston). 

1 7 16  —  Lex  Parliamentaria  or  a  Treatise  on  the  Law  and  Custom 
of  the  Parliaments  of  England,  by  George  Petyt  (London, 
printed  and  reprinted  in  N,  Y.  and  sold  by  WilHam  and 
Andrew  Bradford  in  N.  Y.  and  Phila.). 

1720  —  The  Security  of  Englishmen'' s  Lives  or  the  Trust,  Power, 
and  Duty  of  the  Grand  Jurys  of  England,  by  John  Somers. 

1 72 1 — English  liberties  or  the  Freeborn  Subjects'  Inheritance, 
containing  Magna  Charta,  Charta  de  Foresta,  the  Statute  De 
Tallagio  non  Concedendo,  the  Habeas  Corpus  Act  and  several 
other  statutes  with  comments  on  each  of  them. 

Likewise  the  Proceedings  in  Appeals  of  Murder;  of  Ship  Money; 
of  Tonnage  and  Poundage;  of  Parliaments  and  the  quali- 
fication and  choice  of  members;  of  the  three  estates  and  of  the 
settlement  of  the  Crown  by  Parliament.  Together  with  a 
short  history  of  the  successiojt  not  by  any  hereditary  right;  Also 
a  declaration  of  the  liberties  of  the  subject;  and  of  the  oath  of 
allegiafice  and  supremacy.  The  Petition  of  Right  with  a  short 
but  impartial  relation  of  the  difference  between  King  Charles 
I  and  the  Long  Parliament  concerning  the  Prerogative  of  the 
King,  the  Liberties  of  the  Subject  and  the  rise  of  the  Civil  Wars. 
Of  trials  by  Jury  and  of  the  qualifications  of  Jurors;  their 
punishmc7it  for  misbehaviour  and  of  challenges  to  them.  Lastly 
of  Justices  of  the  Peace,  Coroners,  Constables,  Churchwardens, 


A  COLONIAL  LAWYER'S  EDUCATION  159 

Overseers  of  the  Poor,  Surveyors  of  the  Highway,  etc.,  with  majiy 
law  cases  throughout  the  whole  and  Compiled  first  by  Henry 
Care  and  continued  with  large  additions  by  W.  N.  of  the 
Middle  Temple  Esq.    The  fifth  edition. 

The  title  of  an  early  law  book  printed  in  Virginia,  in 
1736,  also  shows  the  kind  of  legal  work  chiefly  in  use  and 
published  in  the  Colonies. 

The  Office  and  AtUhority  of  a  Justice  of  the  Peace.  And  also  the 
Duty  of  Sheriffs,  Constables,  Coroners,  Church  Wardens^ 
Surveiors  of  Highways,  Cojistables  cf  Officers  of  Militia.  To- 
gether  with  Precedents  of  Warrants,  Judgments,  Executions 
and  other  legal  Process,  issuable  by  Magistrates  within  their 
respective  Jurisdictions  in  Cases  Civil  or  Criminal,  and  the 
Method  of  Judicial  Proceedings  before  Justices  of  Peace  in 
Matters  within  their  Cognisance  out  of  Sessions,  Collected 
from  the  Conunon  and  Statute  laws  of  England  afid  Acts  of 
Assembly  now  in  force;  and  adapted  to  the  Constitution  and 
Practice  of  Virginia.  By  George  Webb,  Gent,  one  of  His 
Majesty's  Justices  of  Peace  of  the  County  of  New  Kent, 
Williamsburg.    Printed  by  William  Parks. 

There  were  also  printed  about  thirty-five  or  forty  books 
or  pamphlets  giving  reports  of  famous  cases,  of  which  all 
but  five  or  six  were  of  criminal  trials,  murder,  burglary  and 
piracy.  The  first  of  these  was  the  trial  of  Thomas  Souther- 
land  for  murder  in  West  Jersey,  printed  in  1692;  the  next, 
the  trial  of  Col.  Nicholas  Bayard  in  New  York  for  high 
treason,  published  in  1702.  A  report  of  a  case  in  Chancery 
in  New  York  was  printed  in  1727.  In  1736,  John  Peter 
Zenger  printed  a  report  of  his  famous  trial  for  libel  in  New 
York  in  1735.  Two  years  later,  another  report  of  this 
trial  was  printed  in  Philadelphia,  with  comments  by  Eng- 
lish barristers  of  the  Barbadoes. 

In  1753,  a  report  of  the  case  of  William  Fletcher  v.  Wil- 
liam Vassall  for  defamation,  tried  in  the  Massachusetts 
Superior  Court  and  pending  on  appeal  to  the  King  in 


i6o  A  HISTORY  OF  THE  AMERICAN  BAR 

Council,  was  printed.  A  report  of  the  trial  of  Admiral 
Byng  by  court  martial  in  England  was  printed  in  1757. 
A  full  account  was  printed  in  1763  of  the  famous  pro- 
ceedings against  John  Wilkes  in  England,  to  which  was 
appended  An  Abstract  of  that  Precious  Jewel  of  an  English- 
man, the  Habeas  Corpus  Act,  also  the  North  Briton  No.  45 
being  the  paper  for  which  Mr.  Wilkes  was  sent  to  the  Tower  — 
Addressed  to  All  Lovers  of  Liberty. 

In  1770,  a  full  report  of  the  trial  of  the  British  soldiers 
in  Boston  for  murder  was  pubHshed. 

In  1774,  was  printed  Arguments  against  Slavery  in  the 
case  of  James  Somerset,  a  negro,  lately  determined  in  the 
Court  of  King's  Bench;  wherein  is  attempted  to  demonstrate 
the  unlawfulness  of  Domestic  Slavery  in  England,  by  Francis 
Hargrave. 

No  reprint  was  made  in  America,  prior  to  1776,  of  Coke, 
or  of  any  standard  EngHsh  law  writer,  except  Blackstone. 
There  was  no  reprint  of  any  English  law  reports. 

It  is  not  surprising  therefore  that  scant  references  are 
found  to  English  cases,  or  law  reports  m  the  Colonial 
court  records;  or  that  as  a  rule,  the  early  cases  contained 
citations  of  only  the  most  elementary  books,  writers  and 
principles.^ 

1  Thus  Wood's  Institutes  and  Rale's  Analysis  of  the  Law  seem  to  have  been 
favorite  citations  of  Chief  Justice  Sewall  in  the  early  part  of  the  Eighteenth 
Century  in  Massachusetts.  As  early  as  1730,  in  a  printed  argument  in  the 
Superior  Court  in  Massachusetts,  citations  are  found  of  i  Coke,  2  Coke  Rep., 
I  Modern,  Ilobart  and  Chancery  Cases. 

In  Harris  and  McHenry's  Reports,  Vol.  I,  containing  cases  as  early  as 
1658,  the  first  English  cases  cited  are  in  a  brief  of  D.  Dulany  in  Gresham  v. 
Gassoway  in  1718,  the  following  authorities  being  cited:  Cro.  Eliz.,  Mod., 
Sid.,  Raym.,  Keb.,  Rolle  Ab.,  Co.  Litt.,  Poph.,  Mutton,  Winch,  Btdst.,  Sty., 
Sal.,  Saund.,  Vent.,  Vaugh. 

Some  of  the  lawyers  who  came  over  from  England  brought  with  them 
their  acquired  knowledge  of  English  cases.  Thus  in  South  Carolina  in  a 
trial  of  pirates  in  1 718  the  Chief  Justice  Trott  (an  English  barrister)  quotes 


A   COLONIAL  LAWYER'S  EDUCATION  i6i 

The  early  Colonial  lawyers  were  hampered  not  only  by 
this  scant  supply  of  law  books  and  reports,  but  their  difE- 
culties  in  studying  and  determining  the  statutory  law  of 
the  Colonies  were  even  more  serious.  While  Massachusetts 
and  Connecticut  printed  their  statutes  reasonably  early, 
the  other  Colonies  were  late  in  doing  so;  thus  the  first  col- 
lection of  Colonial  Laws  of  New  York  was  published  in 
1 710;  the  Acts  and  Laws  of  Rhode  Island  were  first  printed 
in  1730;  those  of  New  Jersey  in  1732;  those  of  Virginia 
in  1733;  South  Carolina  in  1736;  the  first  collection  of 
Charters  and  other  Public  Acts  relating  to  Pennsylvania 
in  1740,  and  all  its  laws  in  1742;  Bacon's  Compilation  of 
Laws,  in  Maryland  in  1765. 

So  few  copies  were  printed  however  that  it  was  unusual 
for  any  lawyer  to  possess  a  full  set  of  the  local  laws  of  his 
Colony. 

"Even  partial  editions  of  Colonial  laws  (at  least  in  Vir- 
ginia) were  extremely  difiicult  to  be  obtained.  Few  gen- 
tlemen, even  of  the  profession  in  this  country,  have  ever 
been  able  to  boast  of  possessing  a  complete  collection  of 
its  laws,"  said  St.  George  Tucker  in  1803  in  the  preface  to 
his  edition  of  Blackstone. 

The  few  law  books  and  reports  that  existed  in  America 
were  to  be  found  almost  entirely  in  the  libraries  of  the 
richer  lawyers,^  and  sometimes  among  the  books  of  the 
local  clergymen.  "Fifty  or  one  hundred  volumes  were 
considered  a  very  considerable  collection  of  books  for  a 
lawyer's  library."  ^  The  following  examples  give  some 
idea  of  the  prevalent  conditions.    Even  the  largest  library 

Spelman,  Godolphin,  Coke's  First  Institute,  Selden's  Notes  on  Fortescue, 
Laws  of  Oleron,  Digests  and  Pandects  of  Justinian. 

1  George  Bliss  in  his  address  to  the  Bar  of  Hampshire  County,  Sept.  26, 
1826,  says  John  Worthington,  Joseph  Hawley  and  Jonathan  Bliss  had  the 
only  law  libraries  in  all  Western  Massachusetts. 

*  Biographical  Sketches  of  Eminent  Lawyers,  by  S.  L.  Knapp  (1821). 


i62  A  HISTORY  OF  THE  AMERICAN  BAR 

in  the  Colonies  in  the  middle  of  the  Eighteenth  Century, 
that  of  William  Byrd  the  younger,  in  Virginia,  contained 
only  350  volumes  of  law  and  statutes  out  of  a  total  of 

3625.^ 
Judge  Edmund  Trowbridge  of  Massachusetts  possessed 

what  Theophilus  Parsons  called  "not  only  the  best  but 

probably  the  only  thoroughly  good  one  (law  Hbrary)  then 

in  New  England,  and  even  in  America."     It  contained 

all  the  valuable  books  on  EngHsh  law  then  in  existence.^ 

President  Stiles  of  Yale  writes,  in  1790,  of  Governor 

Griswold,  who  was  Chief  Justice  in  1769,  that: 

"He  bought  him  the  first  considerable  law  library  in  Con- 
necticut, took  Att.  oath,  and  began  practice  in  1743  — 
a  great  reader  of  law.  Has  a  fine  library  of  well  chosen 
books  —  about  550  volumes  —  now  left  in  his  study,  be- 
sides a  part  of  his  Hbrary  given  to  his  son  in  Norwich 
—  about  two  hundred  Law  Books,  the  rest  history  and 
divinity."^ 

The  Philogrammatican  Society  of  Connecticut,  of  which 
Jonathan  Trumbull  was  Secretary,  purchased  for  its 
library  in  1735  ninety-four  works  of  which  the  following 
were  the  only  law  books  —  Coke's  Institutes,  Lilly's  Abridg- 
ment, Coke's  Reports,  Bohun's  Declarations  and  Pleadings, 
Jacob's  Introduction  to  Common,  Civil  and  Canon  Law} 

In  the  famous  Hbrary  of  Rev.  Thomas  Prince  of  Boston, 
who  died  in  1758,  out  of  about  1500  volumes,  there  were 
but  five  on  the  Common  Law  —  Britton  (1640),  English 

*  Old  Virginia,  by  John  Fiske. 

^  For  interesting  account  of  Judge  Trowbridge  and  his  libraries  see 
Memoirs  of  Theophilus  Parsons,  by  T.  Parsons,  Jr. 

3  See  MSS.  Itinerary  of  a  Journey  from  New  London  to  New  Haven  in  17 go. 

*  Journal  of  American  History,  Vol.  I,  No.  i.  It  is  interesting  to  note 
that  there  were  thirteen  books  on  medicine,  a  half  dozen  or  so  on  history, 
Milton's  Paradise  Lost,  a  few  volumes  of  the  Spectator,  and  all  the  rest  of 
the  library  consisted  of  religious  works. 


A  COLONIAL  LAWYER'S  EDUCATION  163 

Liberties  with  Magna  C/iarta,  etc.  (1721),  Cowell's  Insti- 
tutes of  English  Law  (1664),  The  Exact  Constable,  Church 
Warden,  etc.  (1682),  Spelman's  Archaeologus  (1626).  There 
was  also  a  copy  of  the  General  Laws  and  Liberties  (1672), 
Bacon's  Novum  Organum,  Grotius  on  War  and  Peace  (1680), 
and  five  books  on  civil  and  canon  law.^ 

The  law  library  of  Meschech  Weare,  a  prominent  lawyer 
and  judge  in  New  Hampshire,  as  inventoried  in  1786,  con- 
sisted of:  Wood's  Institute,  Raymond's  Reports,  Jacob's 
Law  Dictionary,  Foster's  Crown  Law,  Privilege  oj  Parlia- 
ment, W.  Salkeld's  Reports,  New  Hampshire  Law  Books, 
Dalton's  Country  Justice,  Magna  Charta,  Hugo  Grotius, 
and  the  Journals  of  Congress.^ 

John  Adams  wrote: 

"I  know  not  whether  a  set  of  the  Statutes  at  large  or  of 
the  State  Trials  was  in  the  country.  I  was  desirous  of 
seeking  the  law  as  well  as  I  could  in  its  fountain,  and  I 
obtained  as  much  knowledge  as  I  could  of  Bractoii,  Britton, 
Fleta  and  Glanville;  but  I  suffered  very  much  for  v/ant 
of  books  which  determined  me  to  furnish  myself  at  any 
sacrifice  with  a  proper  library,  and  accordingly,  by  degrees, 
I  procured  the  best  library  of  law  in  the  State."  ^ 

Even  the  scanty  supply  of  Hbraries  which  the  Colonies 
possessed  was  depleted  at  the  time  of  the  Revolution  by 
the  flight  of  Tory  lawyers,  most  of  whom  were  wealthy 
and  carried  their  books  away  with  them.'' 

^  See  Catalogue  of  Library  of  Rev.  Thomas  Prince  (1846). 

*  See  Mass.  Hist.  Soc.  Proc,  Vol.  LXIII  (1909). 
'  John  Adajns'  Works,  Vol.  II,  p.  50. 

*  Peter  S.  DuPonceau,  who  studied  in  Philadelphia  in  1784  under 
William  Lewis,  writes  in  1837  {Penn.  Hist.  Soc.  Proc,  Vol.  IV): 

"I  had  gone  through  Blackstone's  Commentaries  and  Wood's  Institutes 
and  was  advised  to  enter  upon  the  study  of  Coke  upon  Littleton.  I  wanted 
to  have  a  copy  of  the  work  all  to  myself  to  read  it  at  my  ease;  but  it  was 
not  easy  to  be  procured.  After  many  fruitless  applications  I  bethought 
myself  of  putting  an  advertisement  in  the  papers  in  which  I  offered  to  give 


i64  A  HISTORY  OF  THE  AMERICAN  BAR 

Some  of  these  law  libraries  of  refugees  were  confiscated 
however,  or  were  purchased  for  the  judges  and  lawyers  by 
legislative  resolves.  Thus  a  resolve  of  the  Massachusetts 
Legislature,  in  1779,  authorized  the  sale  to  Hon.  James 
Sullivan  of  the  Modern  Entries,  Pleas  of  the  Crown,  Foster, 
and  Hawkins  and  the  Reports  of  Strange,  Keyling  and 
Burrow  which  had  belonged  to  Benjamin  Gridley  who  had 
become  a  royahst.^ 

The  college  hbraries  of  the  time  contained  practically 
no  law  books.  In  the  first  catalogue  of  the  Harvard  Col- 
lege Library  (1723)  works  of  Lord  Bacon,  Selden,  Grotius 
and  seven  volumes  of  Common  Law  —  Spelman's  Glossary, 
Pulton's  Statutes,  Keble's  Statutes,  Coke's  First  and  Second 
Institutes  and  two  volumes  of  the  Year  Books  were  the  only 
books  on  legal  subjects.  After  the  burning  of  the  library 
in  1764,  the  following  seven  volumes,  presented  by  Thomas 
Hollis,  constituted  for  many  years  the  sole  law  library  of 
the  College:  2  Bsicon's  Historical  Discourse  (164^);  Burns' 
■Ecclesiastical  Law  (1763);  Carpenter  D.  P.  Glossarium  etc. 
(1766);  Codex,  Theodosianus;  Glanvill  R.,  Tractatus  de 
Legihus  etc.  (1604);  Home's  Mirror  (1642);  Prynne's 
Sovereigne  Power  of  Parliaments  (1643). 

There  were  no  public  Hbraries  in  which  books  of  law 
could  be  found. 

And  as  there  were  in  the  Colonies  no  collegiate  law  lec- 
tures before  1780,  and  no  law  schools  before  1784,  the  young 
man  who  aspired  to  be  a  lawyer  had  two  courses  open  to 
him. 

The  first  was,  to  pick  up  such  scraps  of  knowledge  of 

a  set  of  Valin's  Commentary  on  the  French  Marine  Ordinances  in  exchange. 
To  my  great  astonishment  and  delight  I  received  a  note  from  Mr.  Rawle, 
then  imknown  to  me,  accepting  the  o£fcr." 

'  See  Life  and  Writings  of  James  Sullivan,  by  T.  G.  Amory. 

2  See  Preface  to  the  first  official  Catalogue  of  Library  of  the  Harvard  Law 
School,  by  Charles  Sumner  (1834);  also  edition  of  1846. 


A  COLONIAL  LAWYER'S   EDUCATION  165 

practise,  as  he  could,  by  serving  as  a  copyist  or  assistant 
in  the  clerk's  office  of  some  inferior  or  higher  court,  and 
by  reading  such  books.  Coke  chiefly,  as  he  could  borrow. 

This  was  the  exiguous  training  which  many  eminent 
lawyers  received  who  could  not  afford  the  time  or  the 
money  to  adopt  the  second  course.  They  are  well  described 
by  Hugh  Blair  Grigsby  in  his  picture  of  the  venerable 
James  Nimmo  of  the  Norfolk  (Virginia)  Bar  in  1802: 

"He  was  of  that  substantial  class  of  lawyers  who,  having 
received  an  elementary  grounding  in  Latin  and  mathe- 
matics in  the  schools  of  the  time,  entered  the  clerk's  office 
and  served  a  term  of  duty  within  its  precincts.  He  was 
thus  well  versed  in  the  ordinary  forms  of  the  law  and  with 
the  decision  of  the  Courts  in  leading  cases.  With  such 
men  as  a  class  there  was  no  great  intimacy  with  the  law 
as  a  science.  As  long  as  the  case  lay  in  the  old  routine, 
this  class  of  lawyers  would  get  along  very  well;  but  novel- 
ties were  unpleasant  to  them  they  hated  the  subtleties 
of  special  pleading,  and  they  turned  pale  at  a  demurrer."^ 

Some  few  young  men  of  pre-eminent  native  ability 
achieved  distinction  without  training  even  in  a  clerk's  office. 
Thus  Patrick  Henry  was  admitted  to  the  Bar  in  Septem- 
ber, 1760,  at  the  age  of  twenty-four,  after  six  weeks'  soli- 
tary study  of  Coke  upon  Littleton  and  the  Virginia  statutes, 
although  one  of  the  three  examiners,  George  Wythe,  re- 
fused to  sign  his  license,  leaving  it  to  Peyton  and  John 
Randolph  to  admit  him.  The  latter  said  they  "perceived 
him  to  be  a  young  man  of  genius,  very  ignorant  of  law  but 
did  not  doubt  he  would  soon  qualify  himself."  Wirt  states, 
however,  in  his  Hfe  of  Henry,-  that  "in  spite  of  his  talents 
he  never  conquered  his  aversion  to  systematic  study  of 

>  Discourse  on  Life  and  Character  of  Hon.  Littleton  Waller  Tazewell,  by 
Hugh  Blair  Grigsby  (i860). 

*  Sketches  of  the  Life  and  Character  of  Patrick  Henry,  by  William  Wirt 
(1818). 


1 66  A  HISTORY  OF  THE  AMERICAN  BAR 

the  law  and  could  rarely  see  the  bearing  of  reported  cases," 
this  failing  standing  often  in  the  way  of  success. 

The  second  course  open  to  a  law  student  was  the  familiar 
one  of  entering  the  office  of  some  leading  member  of  the 
Bar,  preferably  one  of  the  few  who  had  good  law  Hbraries, 
and  there  absorbing,  by  study,  observation,  and  occasionally 
by  direct  teaching  from  his  senior,  the  principles  of  the  law. 

For  the  privilege  of  entering  such  an  office  a  student  was 
obHged  to  pay  a  sum  of  money,  usually  $ioo  to  $200, 
sometimes  as  much  as  $500,  if  admission  was  desired  to 
the  office  of  some  pre-eminent  celebrity.  An  interesting 
illustration  of  the  value  set  on  these  privileges  is  found  in 
a  promissory  note  (still  extant)  as  follows: 

"Phila.  March  22,  1782.  I  promise  to  pay  James  Wilson 
Esq.  or  order  on  demand  one  hundred  guineas,  his  fee 
for  receiving  my  nephew  Bushrod  Washington  as  a  student 
of  law  in  his  office.    G.  Washington."  ^ 

In  the  office,  the  student  had  access  to  all  his  senior's 
law  books  for  study.  He  pored  over  the  MSS.  volumes  of 
forms,  and  the  abstracts,  commonplace  books,  and  MSS. 
notes  of  cases,  which  each  lawyer  of  those  days  made  for 
himself.^  He  was  expected  to  copy  out  pleadings  and 
other  documents  for  his  senior,  and  to  draft  briefs.  In 
return  the  lawyer  gave  to  his  student  such  advice,  in- 
formation, or  instruction  as  his  time  or  his  whim  permitted. 

As  a  rule,  the  lawyer  was  too  busy  a  man  to  pay  much 
attention  to  his  students;  and  the  chief  advantage  gained 
by  them  was  in  personal  association  with  the  able  lawyers 
against  whom  he  tried  his  cases,  and  in  the  general  in- 
fluence which  great  characters  have  on  younger  men  who 
come  in  contact  with  them. 

»  See  Letters  and  Times  of  the  Tylers,  by  Lyon  G.  Tyler. 
2  For  interesting  description  of  a  student's  life,  see  Life  and  Writings  of 
James  Sullivan,  by  T.  G.  Amory. 


A  COLONIAL  LA\V\:ER'S  EDUCATION  167 

Thus  even  so  learned  a  lawyer  as  James  Wilson  was 
said  to  have  been  of  slight  advantage  to  his  students,  as  an 
instructor: 

"Mr.  Wilson  devoted  little  of  his  time  to  his  students 
in  his  office  (among  whom  were  Judge  Washington  and 
Samuel  Sitgreaves)  and  rarely  entered  it  except  for  the 
purpose  of  consulting  books.  Hence  his  intercourse  with 
them  was  rare,  distant,  and  reserved.  As  an  instructor  he 
was  almost  useless  to  those  who  were  under  his  direction. 
He  would  never  engage  with  them  in  professional  discus- 
sions; to  a  direct  question  he  gave  the  shortest  possible 
answer  and  a  general  request  for  information  was  always 
evaded."  ^ 

An  interesting  sidelight  on  this  lack  of  sympathy  in  the 
relations  between  lawyer  and  student  is  found  in  an  essay 
written  by  William  Livingston,-  while  a  student,  in  1745, 
in  the  oflQce  of  the  great  Scotch  lawyer  James  Alexander, 
then  the  leading  lawyer  of  New  York,  —  an  invective 
against  the  mode  of  studying  law  as  then  practised,  and 
against  the  drudgery  to  which  clerks  were  subjected. 

The  following  extracts  show  the  general  feeling  of  the 
writer : 

"There  is  perhaps  no  set  of  men  that  bear  so  ill  a  char- 
acter in  the  estimation  of  the  vulgar  as  the  Gentlemen  of 
the  Long  Robe:  whether  the  disadvantageous  idea  they 
commonly  entertain  of  their  integrity,  be  founded  upon 
soUd  reason,  is  not  my  design  to  enquire  into;  but  if  they 
deserve  the  imputation  of  injustice  and  dishonesty,  it  is 
in  no  instance  more  visible  and  notorious,  than  in  their 
conduct  towards  their  apprentices.  That  a  young  fellow 
should  be  bound  to  an  attorney  for  4,  6,  or  7  years, 
to   serve  him    part    of    the    time    for    the    consideration 

'  Biography  of  the  Signers,  by  John  Sanderson,  (1820-1827). 

'  Life  of  William  Livingston,  by  Theodore  Sedgwick,  Jr.  (1S33). 

This  essay  appeared  in  print  in  Parker's  New  York  Weekly  Post  Boy  for 
August  19,  1745,  signed  "Tyro  Philolegis."  It  is  here  reprinted  from  that 
newspaper. 


i68  A  fflSTORY  OF  THE  AMERICAN  BAR 

that  his  master  shall  instruct  in  the  mystery  of  the  law 
the  remainder  of  the  term;  and  that  notwithstanding 
this  solemn  compact  (which  is  binding  on  either  side,  is 
reciprocally  obhgatory)  the  attorney  shall  either  employ 
him  in  writing  during  the  whole  term  of  his  apprentice- 
ship or,  if  he  allows  him  a  small  portion  of  the  time  for 
reading,  shall  leave  him  to  pore  on  a  book  without  any 
instruction  to  smooth  and  faciHtate  his  progress  in  his 
study,  or  the  least  examination  of  what  proficiency  he 
makes  in  that  perplexed  science;  is  an  outrage  upon  com- 
mon honesty,  a  conduct  scandalous,  horrid,  base,  and 
infamous  to  the  last  degree! 

"  These  gentlemen  must  either  have  no  manner  of  con- 
cern for  their  clerk's  future  welfare  and  prosperity,  or  must 
imagine,  that  he  will  attain  to  a  competent  knowledge  in 
the  Law,  by  gazing  on  a  number  of  books,  which  he  has 
neither  time  nor  opportunity  to  read;  or  that  he  is  to  be 
metamorphos'd  into  an  attorney  by  virtue  of  Hocus  Pocus. 
Is  it  the  father's  intention,  when  he  puts  his  son  to  an  at- 
torney, and  gives  a  large  sum  into  the  bargain,  that  he 
shall  only  learn  to  write  a  good  hand?  But  whoever  at- 
tentively considers  how  these  apprentices  are  used,  and 
forms  a  judgment  from  the  treatment  they  meet  with, 
would  certainly  imagine,  that  the  youth  was  sent  to  the 
lawyer  on  purpose  to  write  for  him,  because  his  father 
could  find  him  no  employment;  and  if  his  master,  out 
of  the  exuberance  of  his  humility,  graciously  condescends 
to  instruct  him,  it 's  only  by  the  bye,  in  order  to  enable 
him  to  be  a  more  profitable  servant.  ...  I  averr,  that 
'tis  a  monstrous  absurdity  to  suppose,  that  the  law  is  to 
be  learnt  by  a  perpetual  copying  of  precedents.  These 
gentlemen  may  indeed  plead  custom,  and  in  pleading  that 
they  admit  my  assertions.  ...  It  does  not  want  any 
great  measure  of  knowledge  to  see  the  ridicule  of  this  mon- 
strous practice;  but  what  makes  it  the  more  astonishing, 
is  its  being  practised  by  men  of  learning  and  unquestioned 
honesty.  ...  It  is  therefore  an  affront  to  common  sense 
to  multiply  arguments  for  the  proof  of  a  thing  which  none 
but  a  lawyer  and  a  madman  will  pretend  to  deny.  And  if 
no  logick  can  convince  them  of  the  injustice  of  such  a 


A  COLONIAL  LAWYER'S  EDUCATION  169 

practice  I  believe  no  reasonable  person  would  blame  an 
apprentice  for  discharging  at  them  the  argumentum  basil- 
inum,  or  what  the  English  call  Club-law,  with  full  force 
and  virtue.  This  is  an  argument  of  mighty  energy,  and 
was  much  in  vogue  in  the  Protector's  time,  when  a  man 
unable  to  convince  his  antagonist  by  syllogysm,  knocked 
him  down.  And  in  no  case  can  this  coercive  way  of  reason- 
ing more  justly  be  made  use  of,  than  in  the  case  under 
consideration,  as  nothing  whatsoever  can  be  a  greater 
provocation,  or  demand  a  more  forcible  kind  of  logick." 

As  an  offset  to  the  above,  an  interesting  view  of  the  more 
helpful  relations  between  a  lawyer  and  his  student  is  found 
in  John  Quincy  Adams'  Diary,  in  his  description  of  his 
senior,  Theophilus  Parsons :  ^ 

"  Nov.  27,  1787.  It  is  of  great  advantage  to  us  to  have 
Mr.  Parsons  in  the  office.  He  is  in  himself  a  law  library, 
and  a  proficient  in  every  useful  branch  of  service;  but 
his  chief  excellency  is,  that  no  student  can  be  more  fond 
of  proposing  questions  than  he  is  of  solving  them.  He  is 
never  at  a  loss,  and  always  gives  a  full  and  ample  account, 
not  only  of  the  subject  proposed,  but  of  all  matters  which 
have  any  intimate  connection  with  it.  I  am  persuaded 
that  the  advantage  of  having  such  an  instructor  is  very 
great,  and  I  hope  I  shall  not  misimprove  it  as  some  of  his 
pupils  have  done." 

The  best  idea  of  the  scanty  sources  of  information,  open 
to  a  student  of  those  days,  can  be  gained  by  a  citation  of 
the  studies  of  a  few  of  the  prominent  men  of  the  time. 

Thus  Col.  James  Otis,  father  of  the  famous  James  Otis 
Jr.,  who  studied  law,  prior  to  1750,  at  Barnstable,  Massa- 
chusetts, found  as  the  only  books  obtainable.  Coke's  Insti- 
tutes, Brownlow's  Entries,  and  Plowden's  Conmientaries 
and  Reports} 

Oliver  Ellsworth,  of   Connecticut  (later  Chief    Justice 

1  See  Mass.  Hist.  Soc.  Proc,  2d  Series,  Vol.  XVI  (1902). 

*  Address  before  the  Bristol  County  Bar,  by  Abraham  Holmes. 


« , 


170  A  HISTORY  OF  THE  AMERICAN  BAR 

of  the  United  States  Supreme  Court),  had  as  his  only  text- 
books, Bacon's  Abridgment  and  Jacob's  Law  Dictionary} 

The  following  is  the  course  of  study  recommended  by 
William  Smith,  one  of  the  early  leaders  of  the  Bar  of  New 
York,  to  a  young  friend  of  John  Jay,  about  1760: 

"But  now  I  bring  our  student  home  to  the  studies  of 
his  profession  of  the  law  and  I  would  advise  him  to  read 
these  books  in  the  following  order: 

"First,  for  the  knowledge  of  the  law  in  general, 
"i.  The  treatise  of  law  in  Wood's  Institutes  of  the  Civil 
Law,  or  in  Domat,  which  are  both  the  same. 
2.  Piiffendorf  de  officio  Eominis  et  Civis,  or  an  English 
translation  of  it  called  The  Whole  Duty  of  Man  accord- 
ing to  the  Law  of  Nature,  or  the  abridgment  of  Pufendorf 
in  two  volumes  by  Spavin. 
"And  before  entering  further  into  the  Law  of  Nature 
and  Nations  and  the  Civil  Law,  the  writer  advises  a  general 
study  of  the  elements  of  the  Common  Law  in  the  following 
order: 

"Hale's  History  of  the  Common  Law. 

"Fortescue's  Practice  of  the  Laws  of  England. 

"Sir  Thomas  Smith's  De  Republica  Anglorum. 

"First  Book   of  Doctor  and  Student,  De  Fundamentum 

Legum  Angliae. 
"Second  part  of  Bacon's  Elements. 
"Wood's  Institutes  of  the  Common  Law." 

After  recommending  a  further  and  more  extensive  read- 
ing of  the  Law  of  Nature  and  Nations  and  Civil  Law,  he 
remarks: 

"Then  to  fill  up  and  enlarge  your  ideas,  you  may  read 
Bacon's  Abridgment  of  the  Law  which  it  is  presumed  will 
all  be  soon  published. 

"In  reading  the  Abridgment,  which  is  contrived  so  as 
to  be  read  pleasantly,  I  would  advise  that  you  constantly 
refer  from  the  Abridgment  to  Wood,  and  from  Wood  to 

*  Lives  and  Times  of  the  Chief  Justices,  by  Henry  Flanders  (1881). 


A  COLONIAL  LAWYER'S  EDUCATION  171 

the  Abridgment    (i)   because  I  would   have   these   books 
the  basis  or  foundation  of  all  your  studies."^ 

John  Adams,  at  the  age  of  twenty-five,  records  in  his 
Diary  a  course  of  study  which  probably  exceeds  that  of 
any  other  law  student  of  the  time,  especially  noticeable 
being  his  study  of  the  Civil  Law,  of  which  he  writes  as 
early  as  1758: 

"Few  of  my  contemporary  beginners  in  the  study  of 
the  law  have  the  resolution  to  aim  at  much  knowledge 
in  the "  civil  law.  Let  me  therefore  distinguish  myself 
from  them  by  the  study  of  the  civil  law  in  its  native  lan- 
guages, I  shall  gain  the  consideration  and  perhaps  the 
favor  of  Mr,  Gridley  and  Mr,  Pratt  by  this  means." 

And  in  November,  1760,  he  records: 

"I  have  read  a  multitude  of  law  books  —  mastered  but 
few  —  Wood,  Coke,  two  volumes  of  Lillies'  Abridgement, 
two  volumes  Salkeld's  Reports,  Swinburne,  Hawkin's  Pleas 
of  the  Crown,  Fortescue,  Fitzgibbon.  Ten  volumes  in  foHo 
I  read  at  Worcester  quite  through,  besides  octavos  and 
lesser  volumes,  and  many  others,  of  all  sizes,  that  I  con- 
sulted occasionally  without  reading  in  course,  as  dic- 
tionaries, reporters,  entries  and  abridgments.  During 
the  last  two  years  Justinian's  Institutes  I  have  read  through 
in  Latin,  with  Vinnius'  Perpetual  Notes.  Van  Muyden's 
Tractatio  Institutionum  Justiniani  I  read  through  and 
translated  mostly  into  English  from  the  same  language. 
Wood's  Institutes  of  the  Civil  Law  I  read  through.  These 
on  Civil  Law.  On  the  law  of  England  I  read  Cowell's 
Institute  of  the  Laws  of  England,  and  Imitations  of  Jus- 
tinian, Doctor  and  Student,  Finch's  Discourse  of  Law, 
Hale's  History  and  some  reporters,  Cases  in  Chancery, 
Andrews,  etc.,  besides  occasional  searches  for  business; 
also  a  General  Treatise  of  Naval  Trade  and  Coynmerce,  as 
founded  on  law  and  statutes.     All  this  series  of  reading 

^  Lives  of  the  Chief  Justices,  by  George  Van  Santvord  (1SS2).  It  will  be 
noticed  how  closely  this  follows  the  course  for  study  given  in  England  by 
Chief  Justice  Reeves. 


172  A  HISTORY  OF  THE  AMERICAN  BAR 

has  left  but  faint  impressions  and  a  very  imperfect  system 
of  law  in  my  head.  I  must  form  a  serious  resolution  of 
beginning  and  pursueing  quite  through  the  plans  of  my 
Lords  Hale  and  Reeves.  Wood's  Institutes  of  Common 
Law  I  never  read  but  once,  and  my  Lord  Coke's  Com- 
mentary on  Littleton  I  never  read  but  once.  These  two 
authors  I  must  get  and  read  over  and  over  again.  And 
I  will  get  them  and  break  through,  as  Mr.  Gridley  expresses 
it,  all  obstructions. 

"Besides,  I  am  but  a  novice  in  natural  law  and  civil 
law.  There  are  multitudes  of  excellent  authors  on  natural 
law  that  I  have  never  read;  and  indeed  I  never  read  any 
part  of  the  best  authors  PufendorJ  and  Or  otitis.  In  the 
civil  law  there  are  Hoppius  and  Vinnius,  commentators 
on  Justinian,  Domat,  etc.,  besides  institutes  of  canon  and 
feudal  law  that  I  have  read.  Much  may  be  done  in  two 
years  I  have  found  already;  and  let  it  be  my  care  that 
at  the  end  of  the  next  two  years,  I  be  better  able  to 
show  that  no  time  has  been  lost,  than  I  ever  have  been 
yet" 

Resources,  however,  such  as  Adams  could  have  access 
to,  in  Boston,  were  not  available  for  the  country  practi- 
tioner. And  the  office  of  the  average  country  lawyer, 
even  towards  the  end  of  the  Eighteenth  Century,  con- 
tained little  more  than  Coke  on  Littleton,  Comyn's  Digest^ 
Bacon's  Abridgement,  Hale's  or  Hawkins'  Pleas  of  the 
Crown,  Blackstone,  Lilly's  Entries,  Saunders  Reports  and 
some  brief  book  on  pleading  and  on  practise.^ 

"Probably  a  copy  of  Blackstone  was  not  to  be  found  in 
Hampshire  County  before  the  year  1770.  They  had  Hale 
and  Gilbert,  and,  a  short  time  before  the  Revolution, 
Bacon's  Abridgment,  but  there  was  not  in  the  county  a 
copy  of  Comyn's  Abridgment.  They  had  Coke  and  Little- 
ton as  well  as  Rastell,  Fitzherbert,  Bracton,  Britton  and 
Fleta.'"" 

1  Life  of  Charles  Marsh,  by  James  Barret  (1871). 

*  Address  oj  George  Bliss  to  Hampshire  County  Bar,  September  26,  1826. 


A  COLONLVL  LAWYER'S  EDUCATION  173 

So  said  George  Bliss  in  his  address  to  the  Hampshire  Bar 
in  1826. 

Partly  because  of  the  lack  of  books,  partly  because  of 
the  undeveloped  state  of  the  law  of  business  and  personal 
relations,  a  student  spent  most  of  his  time  on  the  subjects 
of  real  property  and  pleadings  as  found  in  the  rigorous 
pages  of  Coke  on  Littleton,  and  often  in  the  still  more  re- 
fractory volumes  of  Br  acton,  Britton,  Fleta  and  Glanville. 

John  Adams  says  that  when,  as  an  appHcant  for  admis- 
sion to  the  Bar,  he  sought  Gridley's  aid: 

"I  have  a  few  pieces  of  advice  to  give  you,  Mr.  Adams, 
said  Gridley.  One  is,  to  pursue  the  study  of  the  law,  rather 
than  the  gain  of  it;  pursue  the  gain  of  it  enough  to  keep 
out  of  it,  enough  to  keep  out  of  the  briers,  but  give  your 
main  attention  to  the  study  of  it.  The  next  is,  not  to 
marry  early;  for  an  early  marriage  will  obstruct  your 
improvement;  and,  in  the  next  place,  it  will  involve  you  in 
expense.  Another  thing  is,  not  to  keep  much  company, 
for  the  application  of  a  man  who  aims  to  be  a  lawyer  must 
be  incessant;  his  attention  to  his  books  must  be  constant, 
which  is  inconsistent  with  keeping  much  company.  In 
the  study  of  the  law,  the  Common  Law,  be  sure,  deserves 
your  first  and  last  attention;  and  he  has  conquered  all 
the  difficulties  of  this  law,  who  is  master  of  the  Institutes. 
You  must  conquer  the  Institutes.  The  road  of  science 
is  much  easier  now  than  it  was  when  I  set  out;  I  began 
with  Coke-Littleton  and  broke  through."^ 

It  was  on  Coke  on  Littleton  that  Chief  Justice  Jay  was 
brought  up.^  Littleton's  Tenures  were  the  main  study  of 
James  Iredell,  in  1770.^ 

'  Adams'  Life  and  Letters,  Vol.  II. 

*  Lives  of  the  Chief  Justices,  by  Henry  Flanders. 

'  McRee,  in  his  Life  of  James  Iredell,  gives  the  following  account  of  his 
study;  and  the  extracts  from  his  diary  show  the  difficulty  with  which  the 
Tenures  retained  his  attention. 

"He  was  a  diligent  student,  he  copied  Mr.  Johnston's  arguments  and  pleas 
in  interesting  cases.    He  read  carefully  and  attentively  the   text  books, 


174  A  fflSTORY  OF  THE  AIMERICAN  BAR 

Coke  and  Bracton  were  the  chief  studies  of  Thomas 
Jefferson  (1762-1767). 

"When  I  was  a  student  of  the  law  after  getting  through 
Coke  Lyttleton  whose  matter  cannot  be  abridged,  I  was 
in  the  habit  of  abridging  and  commonplacing  what  I  read 
meriting  it,  and  of  course  sometknes  making  my  own  re- 
flections on  the  subject. 

''  Coke  Lyttleton  was  the  universal  elementary  book  of 
law  students  and  a  sounder  Whig  never  wrote  nor  pro- 
founder  learning  in  the  orthodox  doctrines  of  British 
Hberties.  Our  lawyers  were  then  all  Whigs.  But  when 
his  black  letter  text  and  uncouth  but  cuniiing  learning 
got  out  of  fashion,  and  the  honeyed  Mansfieldism  of  Black- 
stone  became  the  student's  horn-book,  from  that  moment, 
that  profession  (the  nursery  of  our  Congress)  began  to  slide 
into  Toryism  and  nearly  all  the  young  brood  of  lawyers 
are  now  of  that  Hne.  They  suppose  themselves  indeed 
to  be  Whigs  because  they  no  longer  know  what  whiggism 
or  republicanism  means."  ^ 

The  older  American  lawyers  agreed  with  Lord  Eldon's 
views,  who,  in  advising  a  young  friend  in  1800  to  read  Coke 
again  and  again,  wrote: 

"If  it  be  toil  and  labour  to  you,  and  it  will  be  so,  think 
as  I  do  when  I  am  climbing  up  to  Swyer  or  to  Westhill, 

referring  to  the  authorities  quoted,  and  collating  and  digesting  kindred  pas- 
sages from  all  the  writers  within  reach;  he  attended  the  courts,  returned  to 
his  chamber  and  wrote  out  the  arguments  of  his  own  applicable  to  the  cases." 
...  In  his  diary  August  23,  1770,  he  writes:  "I  have  not  done  as  much  as 
I  ought  to  have  done,  read  a  little  in  Littleton's  Tenures  and  stopt  in  the 
middle  of  his  chapter  on  Rents,  whereas,  if  I  had  gone  through  it,  it  would 
have  been  better  and  more  agreeable  than  losing  three  or  four  games  of 
billiards." 

"August  24.  —  This  morning  pretty  well  employed;  read  a  good  deal  in 
Littleton's  Tenures,  and  afterwards  a  little  in  the  Edinburgh  Magazine  for 

1758. 

"August  29. —  Read  a  little  in  Littleton's  Tenures,  not  much  though, 

being  interrupted." 

1  Thomas  Jejferson  as  a  Lawyer  —  Green  Bag,  Vol.  XV. 


A  COLONIAL  LAWYER'S  EDUCATION  17s 

that  the  world  will  be  before  you  when  the  toil  is  over; 
for  so  the  law  world  will  be,  if  you  make  yourself  complete 
master  of  that  book.  At  present,  lawyers  are  made  good, 
cheap,  by  learning  law  from  Blackstone  and  less  elegant 
compilers.  Depend  upon  it,  men  so  bred  will  never  be 
lawyers  (though  they  may  be  barristers),  whatever  they 
call  themselves.  I  read  Coke  on  Littleton  through,  when 
I  was  the  other  day  out  of  the  office,  and  when  I  was  a 
student  I  abridged  it."^ 

Later  Eighteenth  Century  lawyers,  however,  though 
still  immersed  in  Coke  by  their  instructors,  did  not  share 
this  profound  admiration.  Thus  Mr.  Justice  Story  wrote 
of  his  entry  upon  the  study  of  law  in  1798  as  follows: 

"I  confess  my  heart  sunk  within  me.  .  .  .  Then  the 
student,  after  reading  that  most  elegant  of  all  commen- 
taries, Mr.  Justice  Blackstone's  work,  was  hurried  at 
once  into  the  intricate,  crabbed,  and  obsolete  learning  of 
Coke  on  Littleton.  .  .  .  You  may  judge  how  I  was  surprised 
and  startled  on  opening  works  where  nothing  was  presented 
but  dry  and  technical  principles,  the  dark  and  mysterious 
elements   of    the   feudal    system,    the   subtle   refinements 

1  Life  of  Lord  Eldon,  by  Horace  Twiss  (1844). 

Lord  Campbell  also  writes  in  1849  in  his  diary: 

"I  have  taken  to  my  old  favorite  Co.  Lilt.  It  certainly  is  very  pleasant 
reading.  I  am  more  than  ever  struck  by  its  unmethodical  and  rambling 
character,  but  one  must  admire  the  author's  stupendous  familiarity  with 
all  parts  of  the  law  of  England;  he  is  uniformly  perspicuous,  he  gives  amus- 
ing glimpses  of  history  and  manners  and  his  etj-mologies  and  other  quaint 
absurdities  are  as  good  for  a  laugh  as  Joe  Miller  or  Punch.  .  .  .  No  man 
can  thoroughly  understand  the  law  as  it  is  without  knowing  the  changes  it 
has  undergone,  and  no  man  can  be  acquainted  with  its  history  without 
being  familiar  with  the  writings  of  Lord  Coke.  Nor  is  he  by  any  means  so 
dry  and  forbidding  as  is  generally  supposed.  He  is  certainly  unmethodical, 
but  he  is  singularly  perspicuous,  he  fixes  the  attention,  his  quaintness  is 
often  amusing  and  he  excites  our  admiration  by  the  inexhaustible  stores  of 
erudition  which  without  any  eflort  he  seems  spontaneously  to  pour  forth. 
Thus  were  our  genuine  lawyers  trained.  Lord  Eldon  read  Coke  upon  Little- 
ton, once,  twice  and  thrice  and  made  an  abstract  of  the  whole  work  as  a  useful 
exercise." 


176  A  HISTORY  OF  THE  AMERICAN  BAR 

and  intricacies  of  the  middle  ages  of  the  Common  Law, 
and  the  repulsive  and  almost  unintelligible  forms  of  proc- 
esses and  pleadings.  .  .  .  Soon  after  Mr.  Sewall's  de- 
parture to  Washington  I  took  it  {Coke)  up,  and  after 
trying  it  day  after  day  with  very  little  success  I  set 
myself  down  and  wept  bitterly.  ...  I  went  on  and  on 
and  began  at  last  to  see  daylight,  ay,  and  to  feel  that 
I  could  comprehend  and  reason  upon  the  text  and  the 
comments.  When  I  had  completed  the  reading  of  this 
most  formidable  work,  I  felt  that  I  breathed  a  purer  air 
and  that  I  had  acquired  a  new  power.  ...  I  pressed  on 
to  the  severe  study  of  special  pleadings  and  by  repeated 
perusals  of  Saunders  Reports  acquired  such  a  decided 
rehsh  for  this  branch  of  my  profession  that  it  became  for 
several  years  afterwards  my  favorite  pursuit.  ...  I  also 
read  through  that  deep  and  admirable  work  .  .  .  Fearne 
on  Contingent  Remainders  and  Executory  Devises  and  I 
made  a  MSS.  abstract  of  all  its  principles."  * 

•  And  Daniel  Webster  ^  who  studied  first  in  1801  in  the 
office  of  Thomas  W.  Thompson  at  Salisbury,  New  Hamp- 
shire, said: 

"I  was  put  to  study  in  the  old  way,  that  is,  the  hardest 
books  first,  and  lost  much  time.  I  read  Coke-Littleton 
through  without  understanding  a  quarter  part  of  it.  .  .  . 

"  A  boy  of  twenty,  with  no  previous  knowledge  of  such 
subjects,  cannot  understand  Coke.  It  is  folly  to  set  him 
upon  such  an  author.  There  are  propositions  in  Coke  so 
abstract,  and  distinctions  so  nice,  and  doctrines  embracing 
so  many  distinctions  and  qualifications,  that  it  required 
an  effort  not  only  of  a  mature  mind,  but  of  a  mind  both 

*  In  a  letter  to  his  son  W.  VV.  Story,  Feb.  9,  1841,  Judge  Story  says,  "It 
reminds  me  strongly  of  my  own  case  when,  escaping  from  the  walls  of  college, 
I  found  myself  in  a  lawryer's  office,  among  the  dusty  rubbish  of  former  ages; 
for  at  that  time  there  were  few  elementary  works  to  smooth  the  passage,  and 
from  reading  the  classical  work  of  Blackstone,  I  had  immediately  to  plunge 
into  the  dark  page  of  Coke  upon  Littleton.  I  could  say,  with  Spelman,  that 
my  heart  sank  within  me." 

2  Autobiography  of  Daniel  V/ebster  (1829). 


A  COLONIAL  LAWYER'S  EDUCATION  177 

strong  and  mature,  to  understand  him.  Why  disgust  and 
discourage  a  young  man  by  telling  him  he  must  break  into 
his  profession  through  such  a  wall  as  this?  I  really  often 
despaired.  I  thought  I  never  could  make  myself  a  lawyer  and 
was  almost  going  back  to  the  business  of  school  teaching." 

John  Quincy  Adams  records  in  his  Diary:  ^ 

"March,  1788.  I  this  day  got  through  my  folio  of  Lord 
Coke  which  has  been  hanging  heavily  upon  me  these  ten 
weeks.  It  contains  a  vast  mass  of  law  learning,  but  heaped 
up  in  such  an  incoherent  mass  that  I  have  derived  very 
Httle  benefit  from  it  —  indeed  I  think  it  a  very  improper 
book  to  put  into  the  hands  of  a  student  just  entering  upon 
the  acquisition  of  the  profession.  .  .  .  The  addition  of 
Wood's  Institutes  and  more  especially  of  Blackstone's 
Commentaries  has  been  an  inestimable  advantage  to  the 
late  students  in  the  profession." 

It  was  the  advent  of  Blackstone  which  opened  the  eyes 
of  American  scholars  to  the  broader  field  of  learning  in  the 
law.  He  taught  them,  for  the  first  time,  the  continuity, 
the  unity,  and  the  reason  of  the  Common  Law  —  and 
just  at  a  time  when  the  need  of  a  unified  system  both  in 
law  and  politics  was  beginning  to  be  felt  in  the  Colonies. 

Up  to  this  time,  wrote  Blackstone,  the  student  has  been 
"  expected  to  sequester  himself  from  the  world,  and  by  a 
tedious,  lonely  process  to  extract  the  theory  of  law  from  a 
mass  of  undigested  learning.  How  little  therefore  is  it  to 
be  wondered  at,  that  we  hear  of  so  frequent  miscarriages, 
that  so  many  gentlemen  of  bright  inaugurations  grow 
weary  of  so  unpromising  a  search;  and  that  so  many 
persons  of  moderate  capacity  confuse  themselves  at  first 
setting  out  and  continue  ever  dark  and  puzzled  during 
the  remainder  of  their  lives."  ^ 

1  See  Mass.  Hist.  Soc.  Proc,  2d  series,  Vol.  XVI  (1902). 

2  It  was  to  Mansfield  that  the  credit  was  due  of  discovering  and  turning 
to  public  usefulness  the  genius  of  Blackstone  as  a  jurist.    A  vacancy  occur- 


X78  A  HISTORY  OF  THE  AMERICAN  BAR 

The  publication  of  Volume  I  of  the  Commentaries  was 
made  in  England  in  1765  and  Volume  IV  in  1769;  and  as 
early  as  1 771-177 2  an  American  edition  of  the  full  work  was 
published  in  Philadelphia  in  four  volumes  at  two  dollars 
per  volume,  1400  copies  being  ordered  in  advance.  The 
Hst  of  subscribers  was  headed  by  four  Governors  and  three 
Lieutenant-Governors:  and  the  first  name  among  private 
citizens  was  "John  Adams,  Barrister  at  law,  Boston." 
The  booksellers  of  Boston  subscribed  for  239  copies,  of 
Charleston  89,  of  Philadelphia  84,  of  New  York  60,  of 
Norfolk,  Williamsburgh  and  Winchester  in  Virginia  97. 
In  addition  there  had  previously  been  imported  into  the 
Colonies  at  least  1000  copies  of  the  EngHsh  edition,  at  ten 
pounds  per  set.^ 

The  quaint  wording  of  the  advertisement  inserted  in 
the  first  volume  of  the  American  edition  is  of  interest:  ^ 

"This  volume  can  only  be  sold  to  those  Gentlemen  who 
are  willing  to  subscribe  for  the  whole  of  these  celebrated 
Commentaries,  by  giving  in  their  names  as  Encouragers. 
All  independent  gentlemen  and  scholars,  as  well  as  every 
Magistrate  and  officer  and  Lawyer,  ought  to  possess  this 

ring  in  the  Professorship  of  Civil  Law  at  Oxford,  Blackstone  had  been 
promised  the  appointment  by  the  Duke  of  Newcastle;  but  the  latter 
finding  him  unwilling  to  bestir  himself  for  the  Government  in  poHtical 
agitation  appointed  another  man.  Mansfield  then  advised  Blackstone 
to  settle  at  Oxford  and  to  read  law  lectures  to  such  students  as  chose  to 
attend. 

These  lectures  in  1753  had  attracted  the  attention  of  Charles  Viner  who 
had  made  a  fortune  from  the  proceeds  of  his  Abridgment  (published  1742 
to  1753).  And  when  Viner  died,  in  1756,  he  bequeathed  a  considerable  sum 
for  the  maintenance  of  a  professor  at  Oxford  at  a  salary  of  200  pounds  — 
who  should  give  a  course  of  sixty  lectures  per  year  "On  the  Law  of  Eng- 
land in  the  Enghsh  Language." 

To  fill  this  first  professorship  of  law  in  any  English  speaking  college 
WilHam  Blackstone,  Esq.,  was  appointed  in  1758. 

1  See  Preface  to  Hammond's  Blackstone" s  Commentaries. 

2  See  Law  Dictionaries  —  Amer.  Law  Review,  Vol.  XXVIII  (1894). 


A  COLONIAL  LAWYER'S  EDUCATION  179 

Splendid  and  Useful  Work.  Therefore,  the  Editor  hopeth, 
Patriotism  to  encourage  Native  Fabrications,  with  the 
advantage  of  saving  seven  pounds  on  the  purchase  of  ten 
pounds  worth  —  the  British  edition  being  sold  at  Ten 
Pounds  Pennsylvania  Currency  —  together  with  that  in- 
nate thirst  for  Knowledge,  which  is  so  admirably  engrafted 
in  the  Contexture  of  the  human  mind,  will  nobly  animate 
all  whose  Ideas  are  expanded  in  Search  of  Knowledge  to 
encourage  the  American  Edition." 

Even  prior  to  their  publication  in  book  form,  Black- 
stone's  lectures  had  been  known  in  America;  for  in  Sep- 
tember, 1759,  Jonathan  Sewall  wrote  to  John  Adams: 
"Your  account  of  Mr.  Blackstone's  lectures  is  entirely  new 
to  me.  I  am  greatly  pleased  with  it."  Adams  records  in 
1765  a  conversation  with  Mr.  Gridley  on  Blackstone;  and 
the  title  page  of  a  book  entitled  Conductor  Generalis,  pub- 
lished in  1764  in  New  Jersey  —  a  manual  for  justices  and 
petty  officers  —  contains  the  following  —  "To  which  is 
added  a  treatise  on  the  Law  of  Descent  in  Fee  Simple,  by 
WiUiam  Blackstone,  Esq.,  Barrister  at  Law,  Vinerian 
Professor  of  the  Law  of  England."  ^ 

The  popularity  of  the  Conunentaries  gave  an  impetus  to 

1  James  Iredell  wrote  from  Edenton,  North  Carolina,  July  31,  1771,  to 
his  father  in  London: 

"Will  you  be  so  obliging  as  to  procure  Dr.  Blackstone's  Commentaries  on 
the  Laws  of  England  for  me,  and  send  them  by  the  first  opportunity.  I  have 
indeed  read  them  through  by  the  favor  of  Mr.  Johnston  who  lent  them  to 
me;  but  it  is  proper  I  should  read  them  frequently  and  with  great  attention. 
They  are  books  admirably  calculated  for  a  young  student,  and  indeed  may 
interest  the  most  learned.  The  law  there  is  not  merely  considered  as  a  pro- 
fession but  as  a  science.  The  principles  are  deduced  from  their  source,  and 
we  are  not  only  taught  in  the  clearest  manner  the  general  rules  of  law,  but 
the  reasons  upon  which  they  arc  founded.  By  this  means  we  can  more  satis- 
factorily study,  and  more  easily  remember  them,  than  when  they  are  only 
laid  down  in  a  dictatorial,  often  an  obscure  manner. 

"Pleasure  and  instruction  go  hand  in  hand." 

See  Lijc  and  Letters  oj  James  Iredell,  by  Griffith  J.  McRee  (1857). 


iSo  A  HISTORY  OF  THE  AMERia\N  BAR 

the  importation  of  other  law  books;   so  that,  by   1775, 
Edmund  Burke  said  in  the  House  of  Commons:  ^ 

"In  no  country  perhaps  in  the  world  is  the  law  so  gen- 
eral a  study.  The  profession  itself  is  numerous  and  power- 
ful; and  in  most  provinces  it  takes  the  lead.  The  greater 
number  of  the  deputies  sent  to  the  Congress  were  lawyers. 
But  all  who  read,  and  most  do  read,  endeavour  to  obtain 
some  smattering  in  that  science.  I  have  been  told  by  an 
eminent  bookseller,  that  in  no  branch  of  his  business,  after 
tracts  of  popular  devotion,  were  so  many  books  as  those  of 
the  law  exported  to  the  plantations.  The  colonists  have 
now  fallen  into  the  way  of  printing  them  for  their  own  use. 
I  hear  that  they  have  sold  nearly  as  many  of  Blackstone's 
Commentaries  in  America  as  in  England.  General  Gage 
marks  out  this  disposition  very  particularly  in  a  letter  on 
your  table.  He  states  that  all  the  people  in  his  govern- 
ment are  lawyers,  or  smatterers  in  law;  and  that  in  Boston 
they  have  been  enabled,  by  successful  chicane,  wholly 
to  evade  many  parts  of  one  of  your  capital  penal  institu- 
tions. .  .  .  This  study  renders  men  acute,  inquisitive, 
dexterous,  prompt  in  attack,  ready  in  defence,  full  of  re- 
sources. In  other  countries,  the  people,  more  simple,  and 
of  a  less  mercurial  cast,  judge  of  an  ill  principle  in  govern- 
m^ent  only  by  an  actual  grievance;  here  they  anticipate 
the  evil,  and  judge  of  the  pressure  of  the  grievance  by  the 
badness  of  the  principle.  They  augur  misgovernment  at 
a  distance;  and  snuff  the  approach  of  tyranny  in  every 
tainted  breeze." 

Whether  the  change  is  to  be  attributed  to  the  influence  of 
Blackstone  or  to  the  increased  facihties  for  obtaining 
books,  or  to  the  freer  ideas  brought  about  by  the  American 
Revolution,  the  broadening  of  the  study  of  the  law,  after 
1780,  is  a  striking  and  remarkable  feature  in  the  history 
of  law  in  this  country. 

The  young  lawyer  was  now  expected  to  know  something 

1  Speech  on  Moving  Resolutions  for  Conciliation  with  the  American 
Colonies,  March  22,  1776. 


A   COLONIAL  LAWTER'S  EDUCATION  i8i 

of  the  general  principles  of  public  law  and  to  approach 
jurisprudence  in  a  spirit  of  scientific  inquiry.  He  was 
taught  general  views  in  addition  to  particular  rules. 

Knowledge  of  technical  details  of  feudal  tenure,  of  ob- 
scure customs  and  bewildering  pleadings,  was  no  longer 
enough  to  qualify  the  best  students. 

A  law  course  of  reading  prescribed  in  Judge  Parker's 
ofhce  in  Portsmouth,  New  Hampshire,  and  in  Charles 
Chauncey's  o£&ce  in  New  Haven,  Connecticut,  for  Ezra 
Stiles,  Jr.,  was  as  follows:  ^ 

"  Burlamaqui's  Principes  de  Droit  Naturel ;  Montesquieu's 
VEsprit  des  Lois;  Lord  Kames'  History  of  Law;  Black- 
stone;  Wood's  Maxims;  Wood's  Institutes;  Co.  Litt.; 
Bacon's  Ahr.;  Hawkins'  Pleas  of  the  Croum;  Gilbert's 
Evidence,  Devises,  and  Tenures;  Law  of  Bills  of  Exchange; 
Molloy  De  Jure  Maritimo;  Hale's  Abridgment;  Lex 
Testamentoriim.;  Sullivan's  Lectures;  Bohun's  Institutes 
and  Declarations;  Boot  on  Suits  at  Law;  Offic.  Cler.  Pac; 
Burns'  Justice;  Dalrymple's  Institutions  of  the  Laws  of 
Scotland,  etc.;  Institutes  of  Trihonian  and  part  of  the  Pan- 
dects; Pufendorf;  Poulton's  Crim.  Law;  Salkeld's  Rep.; 
I  and  2  Burrow;  part  of  Lord  Raymond's,  Holt's  and 
Shower's  Reports,  Godolphin's  Legacy  Orph.,  40  volumes." 

A  similar  course  was  assigned  to  John  Quincy  Adams  who 
studied  in  the  office  of  Theophilus  Parsons  in  1788,  first, 
Robertson's  History  of  Charles  V,  Vattel's  Law  of  Nature 
and  Nations,  Gibbon's  Rome  and  Hume's  England;  next, 
Sullivan's  Lectures,  Wright's  Tenures,  Co.  Litt.;  Wood's 
Institutes;  Gilbert's  Evidence;  Foster's  and  Hawkins' 
Pleas  of  the  Crown;  Bacon's  Pleas  atui  Pleadings;  Buller's 
Nisi  Prius;  Barrington's  Observations  on  the  Statutes;  In- 
stitutes of  Justinian.- 

«  Lilcrary  Diary  of  Ezra  Stiles,  Vol.  II;  The  Study  of  Elementary  Law, 
by  S.  E.  Baldwin,  Yale  Law  Journal,  Vol.  XIII. 

*  Study  of  Elementary  Law,  by  S.  E.  Baldwin,  Yale  Law  Journal,  Vol. 
Xni;  Proc.  Mass.  Hist.  Soc,  Vol.  XVI,  2d  series. 


i82  A  HISTORY  OF  THE  AMERICAN  BAR 

The  notebook  of  Israel  Keith  (Harv.  1771)  contained 
the  following  entries  as  to  advice  for  a  law  curriculum  — 
Lord  Chief  Justice  Hale's  Advice  for  study  of  Cofnmon  Law; 
Lord  Chief  Justice  Reeves'  Advice  to  his  nephew  on  the 
study  of  law;  a  letter  from  Dr.  Dickens,  Regius  Professor 
of  Law  at  Cambridge,  England,  to  Jeremiah  Gridley  on 
the  books  necessary  to  a  knowledge  of  Civil  Law,  and  a 
letter  from  Gridley  to  Judge  Lightfoot  of  the  Admiralty 
Court  in  Rhode  Island  on  the  study  of  admiralty  law.^ 

So  too  the  broader  course  of  study  in  the  latter  part  of 
the  Eighteenth  Century  can  be  seen  from  Chancellor  Kent's 
description  of  his  legal  education :  ^ 

^'WTien  the  college  (Yale)  was  broken  up  and  dispersed 
in  July  1779  by  the  British,  I  retired  to  a  country  village 
and  finding  Blackstone's  Commentaries  I  read  the  fourth 
volume.  Parts  of  the  work  struck  my  taste  and  the  work 
inspired  me  at  the  age  of  sixteen  with  awe  and  I  fondly 
determined  to  be  a  lawyer.  In  Nov.  1781,  I  was  placed 
by  my  father  with  Mr.  (now  called  Judge)  Benson  who  was 
then  attorney  general,  at  Poughkeepsie.  There  I  entered  on 
law  and  was  the  most  modest,  steady,  industrious  student 
that  such  place  ever  saw.  I  read  the  following  winter, 
Grotius  and  Pufendorf  in  large  foHos  and  made  copious  ex- 
tracts. My  fellow  students  who  were  gay  and  gallant  thought 
me  very  odd  and  dull  in  my  taste;  but  out  of  five  of  them 
four  died  in  middle  Hfe  drunkards.  .  .  .  In  1782,  I  read 
Smollett's  History  of  England,  and  procured  at  a  farmer's 
house  where  I  boarded  Rapin's  History  (a  large  folio)  and 
read  it  through,  and  I  found  during  the  course  of  the  last 
surmner  among  my  papers  my  MSS.  abridgment  of  Rapin's 
Dissertations  on  the  Laws  and  Customs  of  tJie  Anglo  Saxons. 
I  abridged  Hale's  History  of  the  Common  Law  and  the  old 
books  of  practice  and  read  parts  of  Blackstone  again  and 
again.    The  same  year  I  procured  Hume's  History  and  his 

^  Quincy's  Reports,  note,  p.  178. 

2  Memoirs  and  Letters  of  James  Kent,  by  William  Kent  (1898).  See  letter 
to  Thomas  Washington  of  Tennessee,  written  October  6,  1828. 


A  COLONIAL  LAWYER'S  EDUCATION  183 

profound  reflections  and  admirable  eloquence  struck 
most  deeply  on  my  youthful  mind.  I  extracted  the  most 
admired  part,  made  several  volumes  of  MSS." 

A  more  old  fashioned  course  of  studies  was  pursued  by 
Chief  Justice  Roger  B.  Taney  who  thus  describes  his  legal 
education  in  his  Memoirs: 

"In  spring  of  1796,  read  law  in  office  of  Jeremiah  Thurly 
Chase  at  Annapolis,  Judge  of  General  Court. 

"From  the  character  of  the  judges  of  the  General  Court, 
of  the  bar  who  attended  it,  and  the  business  transacted 
in  it,  Annapohs  was  considered  the  place  of  all  others  in 
the  State  where  a  man  should  study  law,  if  he  expected  to 
attain  eminence  in  his  profession. 

"My  reading  in  the  office  of  a  judge,  instead  of  a  prac- 
tising lawyer,  had  some  advantages;  but  upon  the  whole 
was  I  think  a  disadvantage  to  me.  It  is  true,  it  gave  me 
more  time  for  uninterrupted  study,  but  it  gave  me  no 
instruction  in  the  ordinary  routine  of  practise,  nor  any 
information  as  to  the  forms  and  manner  of  pleading.  In 
that  day,  strict  and  nice  technical  pleading  was  the  pride 
of  the  bar  and  I  might  almost  say  of  the  court.  And  every 
disputed  suit  was  a  trial  of  skill  in  pleading  between  the 
counsel,  and  a  victory  achieved  in  that  mode  was  much 
more  valued  than  one  obtained  on  the  merits  of  the  case. 
.  .  .  Nor  was  it  so  easy  in  that  day  for  an  inexperienced 
young  lawyer  to  satisfy  himself  upon  a  question  of  special 
pleading.  Chitty  had  not  made  his  appearance,  and  you 
were  obliged  to  look  for  the  rule  in  Comyn's  Digest  or 
Bacon's  Abridgment  or  Viner's  Abridgment  and  the  cases 
to  which  they  referred;  and  I  have  sometimes  gone  back 
to  Lilly's  Entries  and  Dodrina  Placitandi  in  searching 
for  a  precedent.  .  .  .  We  had  no  moot  court.  My  pre- 
ceptor, Mr.  Chase,  did  not  encourage  them,  and  in  this 
he  agreed,  I  beheve,  with  the  leaders  of  the  Bar  in  Annap- 
olis in  whose  offices  there  were  students.  He  thought 
that  discussions  of  law  questions  by  students  was  apt  to 
give  them  the  habit  of  speaking  upon  questions  which 
they  did  not  understand  or  of  which  they  had  but  an 


i84  A  HISTORY  OF  THE  AMERICAN  BAR 

imperfect  and  superficial  knowledge  —  that  its  tendency 
therefore  was  to  accustom  them  to  loose  arguments  and 
to  lay  down  principles  without  proper  qualifications. 
He  advised  me  to  attend  regularly  the  sittings  of  the 
General  Court,  to  observe  how  the  eminent  men  at  that 
Bar  examined  the  witnesses  and  brought  out  their  cases, 
and  raised  and  argued  the  questions  of  law,  and  after- 
wards to  write  a  report  of  it  for  my  own  use.  ...  All 
the  lawyers  of  Maryland  who  had  risen  to  eminence  and 
leadership  were  trained  in  the  manner  described  and  ad- 
vised by  Mr.  Chase." 

A  final  and  perhaps  the  best  illustration  of  the  average 
legal  education  is  WiUiam  Plumer,  Jr.'s,  account  of  his 
father,  William  Plumer,  Sr.,  who  was  a  contemporary  of 
Jeremiah  Mason,  Jeremiah  Smith,  Daniel  Webster,  and 
Ichabod  Bartlett  in  New  Hampshire,  and  who  studied  law 
m  1784,  in  the  office  of  Joshua  Atherton: 

"Atherton  gave  him  Coke  upon  Littleton,  as  his  first 
initiation  into  the  mysteries  of  the  law;  and  it  is  not 
strange  that  the  ardor  of  the  young  aspirant  was  some- 
what cooled  by  this  selection  of  masters,  so  quaint,  austere 
and  forbidding.  After  digging  for  some  three  or  four 
weeks,  in  the  rugged  soil  of  the  feudal  tenures,  and  begin- 
ning, as  he  thought,  to  get  some  glimpses  of  its  hidden 
treasures,  he  was  told  by  his  instructor  that  he  must  sus- 
pend his  legal  studies  and  commence  with  the  Latin  Gram- 
mar. He  must  read  Virgil  and  Cicero  before  he  could 
understand  Coke  and  Littleton.  This  was  a  new  and,  to 
him,  most  unwelcome  labor.  He,  however,  laid  aside  his 
law,  and  took  up  Lilly's  Latin  Grammar,  probably  the 
first  grammar  he  had  ever  seen,  certainly  the  first  he  had 
ever  attempted  to  study.  .  .  . 

"In  1785,  his  new  instructor,  John  Prentice,  a  graduate 
of  Harvard  College,  though  probably  not  a  well-read 
lawyer,  possessed  a  respectable  standing  at  the  Bar;  and, 
like  Atherton,  was  afterwards  Attorney  General.  His 
law  Hbrary  consisted  at  this  time  of  Blackstone's  Com- 
mentaries; Wood's  Institutes  of  the  Laws  of  England;  Haw- 


A  COLONIAL  LAWYER'S  EDUCATION  185 

kins'  Picas  of  the  Crown;  Jacob's  Law  Dictionary;  Salkeld; 
Raymond  and  Strangers  Reports;  the  New  Hampshire  Stat- 
utes, and  a  manuscript  volume  of  pleas  and  declarations. 
...  He  read  the  whole  of  Blackstone  rapidly  through, 
in  the  first  instance,  to  acquire,  in  this  way,  a  general 
idea  of  its  contents;  and  then  went  over  it,  more  care- 
fully, a  second  time,  with  a  view  to  its  more  thorough 
comprehension.  He  devoted  at  least  ten  hours  a  day  to 
this  study,  though  he  seldom  read  more  than  forty  or 
fifty  pages  in  that  time.  But  these  were  carefully  studied, 
or,  if  not  fully  understood,  at  least,  examined  with  his 
best  care  and  attention.  His  instructor  was  not  much 
inclined,  nor  indeed  always  able,  to  answer  the  questions 
which  he  asked;  and  the  few  books  within  his  reach  often 
failed  to  furnish  the  desired  information.  Under  these 
circumstances  his  practice  was,  after  reading  a  portion 
of  Blackstone,  to  trace  the  subject  through  other  books; 
and  then,  taking  a  walk  in  some  retired  place,  to  review 
in  his  mind  the  substance  of  what  he  had  read,  examining 
the  relations  of  one  part  with  another,  and  of  the  whole 
with  what  he  had  learned  before,  till  he  felt  himself  master 
of  the  lesson,  and  prepared  to  go  farther. 

"On  the  unportant  subject  of  pleas  and  pleading,  Pren- 
tice had  no  books,  except  a  manuscript  volume  of  forms, 
said  to  have  been  collected  by  Theophilus  Parsons.  This 
the  student  copied,  and  added  to  it  in  the  course  of  his 
practice,  such  other  pleas  and  declarations  as  he  thought 
worthy  of  preservation,  whether  drawn  by  himself,  or 
derived  from  other  sources.  He,  at  the  same  time,  took 
copious  notes  of  his  reading,  and  formed  abstracts  and 
digests  of  the  law  under  separate  heads,  thus  reducing 
his  knowledge  to  a  regular  system." 

Daniel  Webster's  own  account  of  his  course  of  study  in 
the  office  of  Christopher  Gore,  in  1S04,  is  a  typical  example 
of  the  course  followed  in  the  early  years  of  the  Nineteenth 
Century. 

Before  coming  to  Boston,  he  had  studied  about  two  3'ears 
in  Salisbury,  New  Hampshire,  the  first  works  which  he 


i86  A  HISTORY  OF  THE  AMERICAN  BAR 

read  being  Vattel,  Burlamaqui  and  Montesquieu  on  tlie 
Law  of  Nations:  then  Blackstone  and  Coke;  and  the  his- 
tories of  Hume  and  Robertson;  and  "happening  to  take  up 
Espinasse's  Nisi  Frius/'  he  wrote: 

"I  found  I  could  understand  it  and  arguing  that  the 
object  of  reading  was  to  understand  what  was  written,  I 
laid  down  the  venerable  Coke  et  alios  similes  reverendos  and 
kept  company  for  a  time  with  Mr.  Espinasse  and  others, 
the  most  plain,  easy  and  intelligent  writers. 

"Mr.  Gore  had  just  then  returned  from  England,  and 
renewed  the  practice  of  the  law.  He  had  rooms  in  Scollay's 
Building,  and,  as  yet,  had  no  clerk.  A  young  man,  as  little 
known  to  Gore  as  myself,  undertook  to  introduce  me 
to  him.  In  logic,  this  would  have  been  bad.  Ignotum 
per  ignotum.  Nevertheless,  it  succeeded  here.  We  ven- 
tured into  Mr.  Gore's  rooms,  and  my  name  was  pronounced. 
I  was  shockingly  embarrassed,  but  Mr.  Gore's  habitual 
courtesy  of  manner  gave  me  courage  to  speak.  .  .  .  He 
talked  to  me  pleasantly  for  a  quarter  of  an  hour;  and, 
when  I  rose  to  depart,  he  said:  'My  young  friend,  you 
look  as  though  you  might  be  trusted.  You  say  you  came 
to  study,  and  not  to  waste  time.  I  will  take  you  at  your 
word.  You  may  as  well  hang  up  your  hat  at  once;  go 
into  the  other  room ;  take  your  book  and  sit  down  to  read- 
ing it,  and  write  at  your  convenience  to  New  Hampshire 
for  your  letters.'  ...  It  was  a  situation  which  offered 
to  me  the  means  of  studying  books  and  men  and  things. 
It  was  on  the  20th  day  of  July,  1804,  that  I  first  made 
myself  known  to  Mr.  Gore;  and,  although  I  remained  in 
his  office  only  till  March  following,  and  that  with  con- 
siderable intervening  absences,  I  made,  as  I  think,  some 
respectable  progress. 

"In  August  the  Supreme  Court  sat.  I  attended  it 
constantly,  and  reported  every  one  of  its  decisions.  I 
did  the  same  in  the  Circuit  Court  of  the  United  States. 
I  kept  a  little  journal  at  that  time,  which  still  survives. 
It  contains  httle  besides  a  Hst  of  books  read. 

"In  addition  to  books  on  the  common  and  municipal 
law,  I  find  I  read  Vattel  for  the  third  time  in  my  life,  as 


A  COLONIAL  LAWYER'S  EDUCATION  187 

is  stated  in  the  journal,  Ward's  Law  of  Nations,  Lord 
Bacon's  Elements,  PulTendorfT's  Latin  History  of  Eng- 
land, Gifford's  Juvenal,  Boswell's  Tour  to  the  Hebrides, 
Moore's  Travels,  and  many  other  miscellaneous  things. 

"But  my  main  study  was  the  common  law,  and  espe- 
cially the  parts  of  it  which  relate  to  special  pleading. 
Whatever  was  in  Viner,  Bacon,  and  other  books  then  usu- 
ally studied  on  that  part  of  the  science,  I  paid  my  respects 
to.  Among  other  things  I  went  through  Saunders'  Reports, 
the  old  folio  edition,  and  abstracted,  and  put  into  English, 
out  of  Latin  and  Norman-French,  the  pleadings  in  all  his 
Reports.  It  was  an  edifying  work.  From  that  day  to 
this  the  forms  and  language  of  special  pleas  have  been  quite 
familiar  with  me.    I  believe  I  have  my  Httle  abstract  yet." 

When  all  is  said,  however,  as  to  the  meagreness  of  a 
lawyer's  education,  one  fact  must  be  strongly  emphasized 
—  that  this  very  meagreness  was  a  source  of  strength. 
Multum  in  parvo  was  particularly  applicable  to  the  train- 
ing for  the  Bar  of  that  era. 

There  was  truth  in  the  reply  of  a  great  lawyer,  when  asked 
how  the  law>'ers  who  formed  the  United  States  Constitution 
had  such  a  mastery  of  legal  principles,  —  "Why  they  had  so 
few  books."  ^  "Many  other  students,"  wrote  Webster,  "read 
more  than  I  did;  but  so  much  as  I  read,  I  made  my  own." 

And  Chancellor  Kent's  remark  "that  he  owed  his  rep- 
utation to  the  fact  that,  when  studying  law  during  the  war, 
he  had  but  one  book,  Blackstone's  Commentaries,  but  that 
one  book  he  mastered," ^  sums  up  very  concisely  the  cause 
of  the  greatness  of  many  an  early  American  jurist. 

1  See  How  Successful  Lawyers  were  Educated,  by  G.  C.  Macdonald  (1896). 

Sir  Edward  Sugden  in  England  once  said,  "I  resolved,  when  beginning  to 
read  law,  to  make  everything  I  acquired  perfectly  my  own,  and  never  to  go 
to  a  second  thing  until  I  had  entirely  accomplished  the  first.  IMany  of  my 
competitors  read  as  much  in  a  day  as  I  read  in  a  week;  but  at  the  end  of 
the  twelve  months,  my  knowledge  was  as  fresh  as  on  the  day  it  was 
acquired,  while  theirs  had  glided  away  from  their  recollections." 

'  See  Magazine  of  American  History,  Vol.  XIII  (18S5). 


CHAPTER  DC 

EARLY    AMERICAN    BARRISTERS,    AND    BAR    ASSOCIATIONS 

The  local  law  office  does  not  account,  however,  for 
all  the  educated  American  lawyers  of  the  Eighteenth 
Century. 

A  far  greater  number  than  is  generally  known,  received 
their  legal  education  in  London  in  the  Inns  of  Court;  and 
the  influence,  on  the  American  Bar,  of  these  EngUsh-bred 
lawyers,  especially  in  the  more  southerly  Colonies,  was 
most  potent.  The  training  which  they  received  in  the 
Inns,  confined  almost  exclusively  to  the  Common  Law, 
based  as  it  was  on  historical  precedent  and  customary  law, 
the  habits  which  they  formed  there  of  solving  all  legal 
questions  by  the  standards  of  English  liberties  and  of 
rights  of  the  English  subject,  proved  of  immense  value  to 
them  when  they  became  later  (as  so  many  did  become) 
leaders  of  the  American  Revolution. 

Probably  from  twenty-five  to  fifty  American-born 
lawyers  had  been  educated  in  England  prior  to  1760;^ 
and  it  has  been  stated  that  115  Americans  were  admitted 
to  the  Inns,  from  1760  to  the  close  of  the  Revolution;  ^ 
from  South  Carolina  47,  from  Virginia  21,  from  Maryland 
16,  from  Pennsylvania  11,  from  New  York  5,  and  from 
each  of  the  other  Colonies  i  or  2. 

Among   the  more  distinguished  may   be   named  John 

*  Life  and  Times  oj  John  Dickinson,  by  Charles  J.  Stills  (i8qi). 

*  See  Chapters  I,  II,  III  and  IV^,  supra. 


EARLY  BARRISTERS,  AND   BAR  ASSOCIATIONS    189 

Rutledge,  Edward  Rutledge,  Arthur  Middleton,  Charles 
Cotesworth  Pinckney,  Thomas  Heyward,  Thomas  Lynch, 
John  Julian  Pringlc,  and  John  Laurens,  from  South  Caro- 
lina; John  Randolph,  Peyton  Randolph,  Richard  Henry 
Lee  and  Arthur  Lee,  from  Virginia;  Charles  Carroll,  from 
Maryland;  Joseph  Read,  from  New  Jersey;  and  Thomas 
McKean,  Edward  Tilghman  and  William  Tilghman,  Jared 
Ingersoll,  Benjamin  Chew,  William  Rawle,  Phineas  Bond, 
and  John  Dickinson,  from  Pennsylvania,  most  of  these 
being  admitted  to  the  Inner  Temple  and  Middle  Temple.^ 

An  interesting  record  of  the  method  of  procedure  in  the 
English  Inns  is  to  be  found  in  Tfie  Black  Books  of  Lincoln's 
Inn,  as  follows: 

"Called  to  the  Bar,  May  5,  1762:  Joseph  Reade,  Jr., 
on  his  petition  setting  forth  that  he  is  desirous  of  being 
called  to  the  Bar  this  term,  having  kept  Commons,  per- 
formed all  his  exercises,  and  conformed  himself  to  the 
Rules  of  the  Society,  wanting  two  terms  of  his  full  stand- 
ing; that  he  is  a  native  of  New  Yorke  in  North  America, 
and  that  it  is  necessary  for  him  to  go  thither  immediately, 
which  he  intends  to  do,  and  reside  there.  .  .  .  He  must 
pay  five  years'  duties." 

The  breadth  of  education  to  be  sought  in  England  may 
be  gathered  from  the  following  letter  written,  from  Charles- 
ton, July  30,  1769,  by  John  Rutledge  to  his  brother  in 
London : - 

"The  very  first  thing  with  which  you  should  be  thoroughly 
acquainted  is  the  writing  shorthand.  ...  Be  constant 
in  attending  the  sittings  in  Chancery  out  of  terms,  and 
when  there  are  no  sittings  at  Nisi  Prius  in  London  or 


^o- 


*  See  A  Brief  History  of  the  Middle  Temple,  by  C.  E.  A.  Bidwell  (1909); 
The  Black  Books  of  Lincoln's  Inn;  Masters  of  the  Bench  of  the  Inner  Temple; 
Report  of  the  Historical  Manuscripts  Commission^  Amer.  Hist.  Ass.  (1S96), 
pp.  573-689. 

2  See  American  Jurist,  Vol.  XIV. 


I  go  A  HISTORY  OF  THE  AMERICAN  BAR 

Westminster;  for  I  would  prefer  attending  the  King's 
Bench  and  Sittings  of  the  Chief  Justice  of  that  Court  at 
Nisi  Prius  when  they  are  held.  And  remember  what  I 
hinted  to  you  of  attending  alternately  in  the  different 
courts  by  agreement  between  you  and  some  of  your  in- 
timate fellow  students,  and  then  of  comparing  and  ex- 
changing notes  every  evening.  .  .  .  But  you  must  exert 
yourself  to  the  utmost  in  being  able  by  some  means  or 
other  to  attend  the  House  of  Commons  constantly  ...  I 
would  not  have  this  make  you  a  dabbler  in  politics.  What 
I  intend  by  it  is  that  you  may  have  opportunities  of  seeing 
and  hearing  the  best  speakers,  and  of  acquiring  a  good 
manner  and  proper  address.  ...  I  believe  Sheridan  is 
the  only  lecturer  in  England  upon  oratory,  and  I  think 
it  would  be  advisable  to  attend  him  and  mark  well  his 
observations.  .  .  .  And  now  in  regard  to  particular  law 
books  —  Coke's  Institutes  seem  to  be  almost  the  founda- 
tion of  our  law.  These  you  must  read  over  and  over  with 
the  greatest  attention,  and  not  quit  him  until  you  under- 
stand him  thoroughly  and  have  made  your  own  everything 
in  him  which  is  worth  taking  out.  A  good  deal  of  his  law 
is  now  obsolete  and  altered  by  acts  of  Parliament;  however, 
it  is  necessary  to  know  what  the  law  was  before  so  altered. 
Blackstone  I  think  useful.^  The  reports  are  too  tedious  to 
be  all  read  through;  at  least  whilst  you  are  in  England, 
I  would  give  the  preference  to  the  most  modern.  ...  I 
look  upon  it  that  if  you  go  through  all  the  cases  reported 
since  the  Revolution,  when  the  Constitution  seems  to  have 
been  re-established  upon  its  true  and  proper  principles, 
and  since  which  time  by  the  alteration  of  the  Judges' 
commission  and  their  increasing  independence,  to  what 
it  is  at  this  day,  the  law  has  been  in  its  greatest  perfection, 
and  not  encroaching  either  upon  the  people's  liberties  or 
the  prerogative;  I  say,  if  you  do  this,  you  will  have  a  col- 
lection of  the  very  best  cases.  ...  I  would  read  every 
case  reported  from  that  time  to  the  present.  Distin- 
guish between  your  reading  of  law  and  equity,  and  don't 
confound   the   two   matters.  .  .  .  They    are    kept    very 

*  It  is  to  be  noted  that  this  letter  was  written  before  Blackstone  had 
been  republished  in  the  Colonies. 


EARLY  BARRISTERS,  AND   BAR  ASSOCIATIONS    igi 

distinct  in  the  Courts  of  England,  though  here  blended 
together  very  often  and  very  ridiculously.  ...  I  would 
have  you  also  read  the  statute  laws  throughout.  .  .  .  Vast 
numbers  of  them  you  will  iind  of  no  manner  of  use,  except 
indeed  as  matter  of  history;  but  this  thing  I  think  in  the 
main  will  be  of  vast  service  to  you.  .  .  .  Stock  yourself  with 
a  good  collection  of  law  maxims  both  Latin  and  Enghsh  — 
they  are  of  great  use.  .  .  .  Make  yourself  thoroughly  ac- 
quainted with  all  the  terms  of  the  law.  .  .  .  The  httle 
book  called  Tennes  de  la  Ley,  will  help  you.  Doctor  and 
Student  is  a  good  book,  though  a  little  one,  and  good  author- 
ity. Bacon  you  know  is  my  favorite,  and  where  authors 
seem  to  differ  I  think  he  will  best  reconcile  them.  Be 
well  acquainted  with  Crown  Law,  Hale's,  Hawkin's  and 
Judge  Foster's,  and  what  other  Crown  Law  books  there 
are,  read  carefully." 

In  connection  with  study  at  the  Inns  of  Court,  the 
correspondence  of  Charles  Carroll  of  CarroUton  wath  his 
father  is  of  singular  interest.  Carroll  had  chambers  in 
the  Inner  Temple  Inn  for  several  years  about  1760,  being 
one  of  a  group  of  young  Maryland  lawyers  studying  law 
in  London  —  Edmund  Key,  Edmund  Jenning,  Lloyd 
Dulany,  Alexander  Lawson,  William  Paca  and  William 
Cooke.^    In  1759,  his  father  wrote  to  him: 

"Many  reasons  ought  to  incline  you  to  a  close  and 
serious  study  of  ye  law;  it  is  a  shame  for  a  gentleman  to 
be  ignorant  of  ye  laws  of  liis  country  and  to  be  dependent 
on  every  dirty  pettifogger  whose  interest  it  may  be  to 
lead  him  by  such  a  dependence  into  endless  difficulties. 
On  the  other  hand,  how  commendable  is  it  for  a  gentleman 
of  an  independent  fortune,  not  only  not  to  stand  in  need  of 
mercenary  advisers,  but  to  be  able  to  ad\dse  and  assist 
his  friends,  relatives  and  neighbors.  What  weight  must 
such  a  one  have  on  ye  circle  of  his  acquaintance!  How 
endearing  may  he  make  himself  to  all  by  a  benevolent 

*  See  Unpublished  Letters  of  Charles  Carroll  of  CarroUton  and  of  His 
Father  (1902);  Life  of  Charles  Carroll,  by  Kate  Mason  Rowland  (189S). 


192  A  HISTORY  OF  THE  AMERICAN  BAR 

use  of  his  knowledge!  Suppose  you  should  be  called  upon 
to  act  in  any  pubUck  character,  what  an  awkward  figure 
would  you  make  without  ye  knowledge  of  ye  law,  either 
as  a  legislator,  judge,  or  even  an  arbitrator  of  differences 
among  your  neighbours  and  friends. 

"The  law  in  England  is  not  only  a  road  to  riches,  but  to 
ye  highest  honours.  It  is  true,  as  things  now  stand  you 
are  shut  out  from  ye  Bar;  but  you  are  not  debarred  from 
acting  as  a  councellor.  As  I  before  observed,  ye  knowledge 
of  it  is  absolutely  necessary  to  every  gentleman  of  fortune 
who  has  the  least  idea  of  being  independent. 

"I  do  not  send  you  to  ye  Temple  to  spend  (as  many  do) 
four  or  five  years  to  no  purpose.  I  send  you  to  study  and 
labour;  it  is  what  I  expect  from  you  —  do  not  disappoint 
my  hopes.  ...  I  understand  that  lately,  in  one  of  our 
Universities,  there  is  a  chair  estabhshed  for  a  Professor  of 
ye  Common  Law;  this  has  been  long  wished  for.  Whether 
ye  Professor  or  his  method  answers  ye  expectation  of  ye 
pubHck,  I  know  not;  but  it  is  certainly  worth  your  while 
to  enquire  whether  you  may  not  reap  some  advantage 
from  it,  and  to  judge,  yourself,  you  may  in  vacation  time 
go  to  hear  him. 

"I  approve  your  acquaintance  with  such  of  your  school- 
fellows as  are  men  of  family  and  good  morals;  little  tours 
at  proper  times  to  their  country  seats  will  be  a  relaxation 
and  amusement.  .  .  .  You  mil  meet  several  of  your 
countrymen  in  London,  with  some  of  them  in  ye  Temple 
or  other  Inns  of  Court.  Treat  them  politely.  If  you 
should  mention  them  in  your  letters,  let  it  be  to  their  advan- 
tage; but  with  them,  as  with  all  others,  be  reserved  until 
you  know  them." 

Again,  on  July  14,  1760,  his  father  wrote: 

"I  think  a  student  in  ye  Temple  cannot  apply  himself 
properly  to  his  studies  and  spend  above  300  pounds  a 
year;  whether  you  spend  250  or  300  a  year  is  to  me  imma- 
terial, but  to  you  it  cannot  be  so,  if  by  spending  your  money 
you  misspend  your  time,  which  to  you  is  more  precious 
than  money.  .  .  . 

"You  vainly  at  present  fancy  you  might  study  here; 


EARLY  BARRISTERS,   AND   BAR   ASSOCIATIONS    193 

—  might  not  every  gentleman  in  ye  Temple  say  as  much 
of  his  own  home  ?  The  distractions  and  various  occupa- 
tions of  a  man  once  entered  into  ye  world  make  such  a 
scheme  almost  chimerical.  A  long  series  of  years,  research 
and  experience,  show  that  it  was  necessary  to  have  par- 
ticular places  appointed  for  ye  study  of  ye  law;  and  that 
in  such,  a  knowledge  of  it  is  soonest  and  best  acquired." 

Of  Carroll's  low  opinion  of  the  legal  education  to  be 
obtained  in  the  Temple,  the  following  letters  are  an  illus- 
tration.   In  1762,  he  wrote  to  his  father: 

*'No  degree  at  law  can  be  obtained  without  being  called 
to  the  Bar.  The  being  entered  of  the  Temple  is  a  necessary, 
previous  and  preparatory  step  to  that  ceremony,  which, 
though  a  ceremony,  is  an  opening  to  all  preferments  in  the 
law;  'tis  attended  with  no  other  advantages,  but  many 
and  great  inconveniences;  the  chief  est  is  the  frequenting 
loose  and  dissolute  companions.  For  this  reason  I  have 
resolved  not  to  enter  myself  of  the  Temple;  —  to  what  ? 
Why  should  I  expose  myself  to  danger  and  be  at  needless 
though  small  expense,  without  any  view  or  hope  of  profit 
and  advantage?" 


*'o'- 


And  in  1763,  he  wrote: 

"If  I  had  known  how  to  procure  a  person  to  instruct 
me  in  the  law,  or  where  such  a  person  was  to  be  found,  I 
should  not  have  neglected  doing  it;  but  indeed  such  a  one 
►is  not  easily  to  be  met  with.  The  best  way  to  become 
a  good  lawyer  is  to  be  under  an  attorney;  not  as  his  clerk 
—  that  would  not  be  so  proper  for  a  gentleman  —  but  to 
be  in  his  office  on  the  footing  of  a  gentleman  by  allowing 
him  a  handsome  gratification.  I  should  then  have  known 
the  practical  part  of  the  law,  by  which  knowledge  many 
difficulties  would  be  removed,  which,  for  want  of  it,  are 
now  insurmountable.  Most  of  our  great  lawyers  have 
been  brought  up  under  attorneys.  The  great  Lord  Hard- 
wicke  is  a  recent  instance  of  that  method's  being  the  best 
for  forming  a  sound  lawyer.  Nothing  can  be  more  absurd 
than  the  usual  manner  of  young  gentlemen's  studying  the 


194  A  fflSTORY  OF  THE  AMERICAN  BAR 

law.  They  come  from  the  University,  take  chambers  in  the 
Temple,  read  Coke  Littleton  —  whom  they  cannot  possibly 
understand,  —  frequent  the  courts  whose  practise  they  are 
ignorant  of.  They  are  soon  disgusted  with  the  difficulties 
and  dryness  of  the  study,  the  law  books  are  thrown  aside, 
dissipation  succeeds  to  study,  immorality  to  virtue;  one 
night  plunges  them  into  ruin,  misery,  and  disease." 

The  facilities  for  legal  study  supphed  by  the  Inns  of 
Court  were,  however,  the  least  of  the  opportunities  open 
to  young  American  barristers  in  London  at  this  time;  for 
these  years,  1750  to  1775,  formed  a  period  of  remarkable 
brilliance  in  English  history.  Students  of  law  were  not 
only  studying  at  the  Inns  side  by  side  with  the  future 
Chief  Justices,  Kenyon  and  Ellenborough,  and  the  future 
Chancellors,  Thurlow,  Eldon  and  Erskine;  but  they  were 
also  listening  to  the  luminous  judgments  of  Lord  Mans- 
field in  King's  Bench,  to  the  commanding  eloquence  of 
Pitt  (Lord  Chatham),  and  the  oratory  of  Charles  Pratt 
(Lord  Camden);  they  were  elbowing,  in  the  Inns  them- 
selves, the  burly  frame  of  Samuel  Johnson  the  autocrat 
of  Uterature;  and  they  were  witnessing  David  Garrick's 
"powers  of  acting  vast  and  unconfined."  ^ 

In  forming  an  idea  of  the  Colonial  lawyer's  education, 
one  further  factor  must  be  borne  in  mind,  —  the  remark- 
able extent  to  which  Eighteenth  Century  lawyers,  espe- 
cially those  of  New  England,  Virginia,  and  South  CaroUna, 
were  college-bred  men.  Practically  all  the  early  lawyers 
in  Massachusetts  were  Harvard  graduates;  and  of  the 
lawyers  admitted  to  practise  in  Boston  at  the  Suffolk  Bar, 
in  later  years,  from  1780  to  18 17,  139  were  Harvard  grad- 

1  Of  Jared  IngersoU  who  was  in  the  Middle  Temple  in  1 774,  his  son  Charles 
J.  IngersoU  wrote,  that  "Mansfield,  Blackstone,  Chatham  and  Garrick  and 
other  luminaries  of  that  period  were  objects  of  his  constant  attention,  and 
of  his  correspondence,  and  ever  after  among  the  pleasures  of  his  memory." 

See  Life  of  Charles  Jarcd  IngersoU,  by  William  M.  Meigs  (1897). 


EARLY  BARRISTERS,   AND   BAR  ASSOCIATIONS     195 

uates;    7  were  from  Brown,  6  from  Dartmouth,  i   from 
Williams,  3  non-graduates. 

In  New  Hampshire,  in  1805,  of  the  106  members  of  the 
Bar,  77  were  college  graduates  —  from  Harvard  35,  Dart- 
mouth 34,  Yale  6,  Brown  2. 

In  Maine,  in  1770,  of  the  six  trained  lawyers,  four  were 
Harvard  graduates. 

In  Connecticut  practically  all  the  lawyers  of  distinction 
were  Yale  graduates. 

In  New  Jersey,  the  prominent  lawyers  were  almost  ex- 
clusively college  men,  either  from  Yale,  like  David  Ogden, 
or  from  Princeton,  like  Richard  Stockton. 

In  Pennsylvania,  as  already  noted,  a  large  proportion  of 
the  Bar  was  educated  in  England  or  in  the  College  of  Phila- 
delphia and  the  University  of  Pennsylvania. 

The  records  of  William  and  Mary  College  and  of  Prince- 
ton contained  the  names  of  many  of  Virginia's  prominent 
lawyers. 

In  South  Carolina,  almost  all  of  distinction  at  the  Bar 
after  the  Revolution  graduated  from  Princeton,  Yale,  or 
the  College  of  South  Carolina. 

New  York  alone  seems  the  exception  in  the  matter  of 
liberal  training  for  her  Bar;  for  in  the  early  Eighteenth 
Century,  men  of  education  were  rare  in  that  Province. 
There  were  no  college  graduates  on  the  Bench,  except 
James  Delancey,  and  none  at  the  Bar,  except  \Mlliam 
Smith.  It  seems  that  commerce  engrossed  the  attention 
of  the  principal  families,  and  their  sons  were  sent  from  the 
writing  school  to  the  counting  house,  and  thence  to  the 
West  Indies.^  In  1741,  when  William  Livingston  gradu- 
ated from  Yale,  there  were  but  six  other  la^vyers  in  the 
Province  who  were  college  graduates,  three  of  whom  were 
his  own  brothers. 

*  Lije  oj  William  Livingston,  by  Theodore  Sedgwick,  Jr.  (1833). 


196  A  HISTORY  OF  THE  AMERICAN  BAR 

And  as  the  mstorian,  William  Smith,  Jr.  (born  in  1728), 
writes  of  his  own  time: 

"To  the  disgrace  of  our  first  planters,  who  beyond  com- 
parison surpassed  their  eastern  neighbors  in  opulence, 
j\Ir.  James  Delancy,  a  graduate  of  the  University  of  Cam- 
bridge, and  IMr.  Smith  were  for  many  years  the  only  aca- 
demics in  the  Province  except  such  as  were  in  holy  orders  — 
and,  so  late  as  1746,  the  author  did  not  recall  above  thirteen 
more." 

In  the  later  part  of  the  Eighteenth  Century,  hov/ever, 
New  York  recruited  her  Bar  very  largely  from  graduates 
of  King's  College  (Columbia). 

After  1770,  as  the  course  of  legal  study  became  liberalized, 
and  the  Bar  became  more  compact  in  its  organization,  and 
assured  of  its  power,  it  gradually  estabUshed  very  rigid 
rules,  fixing  requirements  for  office  study  by  students  de- 
siring admission  as  lawyers.  These  rules  paved  the  way 
for  the  establishment  of  regular  law  schools.  They  also 
tended  to  constitute  lawyers  as  more  and  more  of  an 
educated  guild. 

Nothing  gives  a  better  view  of  the  educational  condi- 
tion of  the  law  student  at  the  end  of  the  Eighteenth  Cen- 
tury than  the  Bar  Book  Sufolk  County  1770,  containing 
the  records  of  its  proceedings  up  to  1805.^ 

Mention  has  been  made,^  of  the  rule  first  adopted  by 
the  Essex  Bar  in  1768,  and  later  generally  by  other  Massa- 
chusetts County  Bars  that: 

"It  is  agreed  that  we  will  not  take  any  young  gentleman 
to  study  with  us,  without  previously  having  the  consent 
of  the  Bar  of  this  Countv;  that  we  will  not  recommend 
any  persons  to  be  admitted  to  the  Inferior  Court  as  at- 

'  See  Mass.  Hist.  Soc.  Proc.  (1882),  and  Historical  Sketch,  by  George 
Dexter. 

*  Chapter  III,  supra. 


EARLY  BARRISTERS,   AND   BAR  ASSOCIATIONS    197 

torneys,  who  have  not  studied  with  some  barrister  three 
years  at  least,  nor  as  attorneys  to  the  Superior  Court,  who 
have  not  studied  as  aforesaid,  and  been  admitted  at  the 
Inferior  Court,  two  years  at  least;  nor  recommend  them 
as  barristers  till  they  have  been  through  the  preceding 
degrees,  and  been  attorneys  at  the  Superior  Court  two 
years  at  the  least  —  except  those  gentlemen  who  are 
already  admitted  in  this  County  as  attorneys  at  the 
Superior  and  Inferior  Courts,  and  that  these  must  be 
subject  to  this  rule  so  far  as  is  yet  to  come." 

In  1800,  the  term  of  years  was  extended  so  that  "students 
of  college  out  of  the  State  be  not  admissible  to  the  Bar  until 
they  shall  have  studied  one  year  longer  than  those  educated 
at  Harvard  University;"  and  "gentlemen  admitted  to 
the  Bar  of  other  States  who  have  practised  thereat  less 
than  four  years  must  have  a  term  of  study  ^^dthin  this 
county  of  at  least  one  year." 

In  1 7 71,  the  Suffolk  Bar  required  that  "consent  of  the 
Bar  shall  not  be  given  to  any  young  gentleman  who  has 
not  had  an  education  at  college,  or  a  Liberal  education 
equivalent  in  the  judgment  of  the  Bar."  This  at  once 
established  a  very  high  educational  standard  for  lawyers. 
In  1784,  the  standard  was  still  further  raised,  by  the  pro- 
vision, that  any  gentleman  proposed  who  had  not  had  a 
college  education,  should  undergo  an  examination  by  a 
committee  of  the  Bar,  previous  to  admission  as  a  student. 
The  examination  was  apparently  thorough,  for,  in  August, 
1784,  it  appears  that: 

"The  report  of  the  committee  on  the  examination  of 
Messrs.  Gardiner  and  Hill  was  considered;  and  it  ap- 
pearing to  the  gentlemen  present  that,  although  those 
gentlemen  were  well  versed  in  the  Latin  and  Enghsh 
classics,  yet  that  a  course  of  study  in  the  mathematics,  in 
ethics,  logic,  and  metaphysics  was  necessary  previous  to 
their  admission  as  students  of  law;  therefore  Voted  unan- 
imously, That  such  admission  be  suspended." 


iqS  a  history  of  the  AMERICAN  BAR 

Also,  in  1793: 

"The  committee  appointed  for  the  examination  of  Mr. 
Joseph  Rowe  report  that  he  received  an  academical  edu- 
cation in  the  province  of  Canada;  after  which,  at  about 
seventeen  years  of  age,  he  entered  the  office  of  the  attorney- 
general  for  that  province  as  a  clerk  and  student  of  the  law; 
that  he  dihgently  attended  to  the  business  of  that  office 
and  a  suitable  course  of  study  the  term  of  two  years; 
all  which  the  committee  conceive  is  equal  to  a  collegiate 
education  in  that  State.  That  he  has  resided  more  than 
three  years  in  Boston  as  a  clerk  in  the  office  of  Mr.  Tudor. 
The  committee,  having  considered  the  quahfications  of 
Mr.  Rowe,  are  of  opinion  that  he  may  be  duly  admitted 
to  the  Bar." 

And  in  1798: 

"The  Committee  of  Suffolk  Bar,  appointed  to  examine 
and  ascertain  the  literary  acquirements  of  Mr.  Holder 
Slocum,  Jr.,  now  a  student  with  Judge  Minot,  have  at- 
tended that  service,  and  report  that  they  find  Mr.  Slocum 
has  so  far  attended  to  the  Latin  language  that  a  moderate 
degree  of  attention  and  practice  will  probably  enable  him 
to  render  it  sufficiently  familiar  for  the  purposes  of  his 
intended  profession.  He  has  paid  no  attention  to  the 
Greek,  and  has  not  been  sufficiently  instructed  in  the 
opinion  of  your  committee,  in  logic,  metaphysics,  and 
mathematics.  He  has  read  some  approved  writers  in  his- 
tory, and  has  attended  considerably  to  the  French  lan- 
guage. ^ 

"It  is  the  opinion  of  the  committee  that  on  his  remain- 
ing in  an  office  three  years  from  the  present  time,  with 
an  attention  for  part  of  the  time,  under  the  direction  of 
his  instructor,  to  history  and  metaphysics,  and  occasion- 
ally to  the  Latin  language,  it  will  be  proper,  at  the  expir- 
ation of  that  period,  if  he  continues  the  assiduity  and 
attention  which  he  has  hitherto  manifested,  to  allow  of 
his  admission  to  the  Bar." 

Often,  however,  the  rules  were  enforced  liberally,  owing 
to  special  circumstances.    Thus,  on  July  21,  1778,  it  was 


EARLY  BARRISTERS,   AND   BAR   ASSOCIATIONS    199 

voted  that  Mr.  Christopher  Gore  (later  Governor  of  Massa- 
chusetts and  a  noted  lawyer)  **be  considered  as  having 
studied  the  law  according  to  the  rules  of  the  Bar  since  the 
month  of  July,  1776,  and  that  he  be  entitled  to  the  privi- 
leges of  such  a  student." 

So,  too,  on  December  3,  1779: 

"Upon  motion  made  by  Mr.  Tudor,  that  ]Mr.  Fisher 
Ames  might  be  considered  as  a  student  with  him  from 
April,  1778,  although  he  had  during  that  time  pursued 
his  studies  at  Dedham,  after  consideration  and  debate, 
Voted,  That  Mr.  Ames  be  considered  as  a  law  student 
from  the  first  day  of  January,  1779,  only  (this  indulgence 
allowed  from  some  particular  circumstances  in  his  favor), 
and  that  at  the  expiration  of  three  years  from  that  day, 
he  continuing  in  Mr.  Tudor's  office  for  the  future,  he  be 
recommended  to  be  sworn  only  on  condition  that  he  sub- 
mit to  an  examination  by  the  Bar,  particularly  in  the 
practical  business  of  the  profession." 

It  is  interesting  to  note  that  the  legal  reputation  of  the 
Suffolk  Bar  was  so  high  at  this  time  that  there  were  many 
applications  from  Southern  law  students  —  men  who  in 
pre-Revolutionary  days  would  have  gone  to  England  to 
study  in  the  Inns  of  the  Inner  or  Middle  Temple. 

Thus,  in  October,  1783,  it  was  voted: 

"On  motion  of  Mr.  Hichborn,  that  Mr.  Richard  Brook 
Roberts  be  admitted  as  a  student  m  his  office  with  a  de- 
duction of  one  year  from  the  usual  term  required  by  the 
rules  for  such  students  previous  to  their  recommendation 
for  the  oath,  Voted,  That  Mr.  Roberts  be  admitted  ac- 
cordingly with  the  proposed  allowance,  provided  he  pro- 
duces a  certificate  from  a  gentleman  of  the  profession 
in  CaroHna  that  he  has  read  law  under  such  gentleman's 
direction  for  one  year  at  least." 

And,  in  July,  1784: 

"On  motion  of  Mr.  Gardiner,  to  have  his  son,  John 
Gardiner,  admitted  into  his  office  as  a  student  of  law; 


200  A  HISTORY  OF  THE  AMERICAN  BAR 

and  on  motion  from  Mr.  Gore  to  have  the  Kberty  of  tak- 
ing into  his  office  Mr.  William  Hill  (a  young  gentleman 
from  North  Carolina),  as  a  student  of  law,  it  appearing 
to  the  Bar  that  neither  of  these  young  gentlemen  had 
received  a  college  education.  Voted  unanimously.  That 
a  committee  be  appointed  to  examine  the  said  young 
gentlemen  with  respect  to  their  literary  qualifications, 
and  to  report  their  opinion  thereon  to  the  Bar." 

In  1780,  it  was  voted  by  the  Suffolk  Bar,  that  "no  gen- 
tleman take  a  student  into  his  office  for  a  less  consideration 
than  one  hundred  pounds  sterling,"  and  in  1783,  that  "no 
gentleman  should  in  the  future  have  more  than  three  stu- 
dents in  his  office." 

Of  the  standard  of  legal  etiquette  and  morality,  the  vote 
of  March  20,  1784,  is  significant: 

"Voted  unanimously  that  no  gentleman  of  the  Bar 
ought  to  go  out  of  his  office  to  put  himself  in  the  way  of 
applications  for  drawing  of  writs  nor  to  employ  any  other 
persons  to  do  business  for  him  out  of  his  office." 

Other  States  had  similar  restrictive  provisions  as  to  ad- 
mission to  practise,  sometimes  formulated  ^by_Bar  Asso- 
ciations, and  sometimes  prescribed  by  rules  of  court  or  by 
statute.  Thus,  in  New  Hampshire,  a  State  Bar  Associa- 
tion, as  early  as  1788,  and  later  in  1805,  adopted  elaborate 
General  Regulations  for  the  Gentlemen  of  the  Bar,  providing 
that: 

"In  case  a  candidate  for  admission  as  a  student  in  an 
office  has  not  had  a  degree  in  the  arts  he  shall,  excepting 
a  knowledge  of  the  Greek  language,  be  duly  qualified  to 
be  admitted  to  the  first  class  of  students  of  Dartmouth 
College." 

College  graduates  were  required  to  study  in  an  office  three 
years;  non-graduates,  five  years.  No  member  of  the  Bar 
could  receive  more  than  three  students  in  his  office;    nor 


EARLY  BARRISTERS,  AND  BAR  ASSOCIATIONS   201 

could  he  receive  any  student  without  the  consent  of  the 
county  Bar.  No  member  of  the  Bar  was  allowed  to  re- 
ceive less  than  $250  as  a  tuition  fee  for  a  student.  No 
lawyer  was  to  be  admitted  to  the  Bar  of  the  Superior 
Court,  until  after  two  years'  practise  in  the  Court  of 
Common  Pleas. ^ 

In  Vermont,  by  statute  of  1787,  and  by  regulations  of 
the  Bar,  the  same  conditions  prevailed. 

In  Rhode  Island,  two  years'  study  for  college  graduates, 
and  three  years'  for  non-graduates,  were  prescribed;  and 
a  candidate  could  not  be  proposed  to  the  court  until  he 
had  obtained  the  approbation  and  consent  of  his  county 
Bar. 

The  same  rule  prevailed  in  Connecticut,  as  early  as  1795, 
either  by  rule  or  custom,  and  after  1807  by  rule  of  the 
Supreme  Court;  and  the  first  Bar  Association  was  formed 
in  that  State  in  1783. 

In  New  Jersey,  a  lawyer  had  to  be  recommended  by  the 
justices  of  the  Supreme  Court  to  the  Governor  for  a 
license  to  practise,  and  to  receive  such  recommendation, 
he  must  serve  as  a  clerk  three  years  if  a  college  graduate, 
four  years  if  a  non-graduate.  He  must  also  pass  an  ex- 
amination before  a  committee  of  three  out  of  the  twelve 
sergeants. 

In  New  York,  a  Bar  Association  had  existed  from  about 
1745  to  1770;  but  little  is  known  of  it,  and  its  records  are 
not  now  extant.  In  the  middle  of  the  Century,  the  mem- 
bers of  the  Bar,  to  prevent  inroads  upon  their  practise, 
made  an  agreement  not  to  receive  into  their  offices,  as 
clerks,  any  young  men  who  intended  to  pursue  the  law  as 
a  profession.     This  rule  did  not  long  prevail;    for  it  was 

*  Rules  of  the  Court,  by  Joseph  B.  Walker,  —  Southern  Xruj  Hampshire 
Bar  Ass.  Proc,  Vol.  IV.  See  also  Proceedings  of  Grafton  and  Coos  County 
Bar  Ass.  (1891). 


2C2  A   HISTORY  OF  THE  AMERICAN  BAR 

found  that  it  would  tend  to  cause  young  men  to  leave  the 
Colony  to  study  —  as  for  instance,  John  Jay,  whose  father 
had  decided  to  send  him  to  England,  but  changed  his  mind 
when  the  Bar  revoked  its  rule,  and  placed  him  in  the  office 
of  Benjamin  Kissam.  In  1797,  the  Supreme  Court  of  New 
York  adopted  rules,  requiring  a  period  of  seven  years' 
study,  in  the  office  of  a  practising  attorney,  before  admis- 
sion to  practise;  but  a  period  not  exceeding  four  years 
spent  on  classical  studies  might  be  credited  on  the  seven 
years.^  After  four  (changed  to  three  in  1804)  years' 
practise  as  attorney,  or  study  under  direction  of  a  pro- 
fessor or  counsellor,  a  person  might  be  admitted  as  a 
counsellor  to  practise  before  the  Supreme  Court. 

In  Maryland,  three  years'  study  under  inspection  of 
some  practising  attorney  or  judge  was  required,  and  also 
an  examination  by  two  gentlemen  of  the  Bar. 

In  Delaware,  three  years'  study  was  prescribed. 

In  Pennsylvania,  by  rule  of  the  Supreme  Court  in  1788, 
the  requirements  were,  four  years'  study  as  a  clerk  and 
one  year's  practise  in  the  Court  of  Common  Pleas,  or  three 
years'  clerkship  and  two  years'  practise  and  examination 
by  two  attorneys;  or  two  years'  clerkship  after  twenty- 
one  years  of  age  and  two  years'  practise,  and  examination. 

In  Virginia,  only  one  year's  study  was  required. 

In  South  Carolina,  a  candidate  must  pass  an  examination, 
unless  he  had  served  four  years  as  attorney's  clerk. 

In  Massachusetts,  New  York,  and  New  Jersey,  the  old 
distinction  between  attorneys  and  counsellors  existed.  In 
the  other  States,  there  were  no  such  separate  classes  of 
lawyers;  but,  in  all  of  them,  two  years'  practise  before  the 
inferior  court  was  prescribed  before  admission  was  granted 
to  practise  in  the  higher  court. 

1  For  complete  account,  see  Admission  to  Ihe  Bar  in  New  York  —  Yale 
Law  Journal.  Vol.  XVI  (1906). 


EARLY  BARRISTERS,  AND  BAR  ASSOCIATIONS    203 

In  two  States,  law  clubs  had  existed  for  the  promotion 
of  social  intercourse  in  the  profession. 

Thus,  in  Massachusetts,  ''The  Sodality"  was  formed  in 
1765,  with  Otis,  Gridlcy,  Quincy,  and  Adams  as  its  lead- 
ing spirits,  of  which  Otis  said: 

"Let  us  form  our  style  upon  the  ancient  and  best  Eng- 
lish authorities.  I  hope,  I  expect  to  see  at  the  Bar,  in 
consequence  of  this  Sodality,  a  purity,  an  eloquence,  and 
a  spirit  surpassing  anything  that  has  ever  appeared  in 
America." 

In  New  York,  in  1770,  "The  Moot"  was  founded,  as  a 
club  "to  encourage  a  more  profound  and  ample  study  of 
the  civil  law,  historical  and  political  jurisprudence,  and 
the  law  of  nature."  Its  most  active  member  was  William 
Livingston,  and  the  "father  of  the  Bar,"  Samuel  Jones. 
Other  veterans  —  Kissam,  Smith,  Scott,  and  Morris  — 
used  to  attend,  while  the  junior  members  of  prominence 
were  John  Jay,  Egbert  Benson,  Richard  Morris  Smith, 
Robert  R.  Livingston,  Stephen  DeLancey,  and  Lindley 
Murray.  Many  learned  questions  were  seriously  dis- 
cussed; and  it  is  said  that  a  Chief  Justice  of  the  Superior 
Court  once  sent  an  issue  of  law  to  the  Moot  for  its  advice. 
Its  last  meeting  was  on  January  6,  1775.^ 

One  other  feature  in  the  practise  of  the  profession  in 
these  early  years,  which  disappeared  later,  had  a  marked 
influence  on  the  lawyer's  development  —  the  close,  per- 
sonal relationsliip  which  the  members  of  the  Bar  bore  to 
each  other. 

This  is  well  described  in  a  letter  from  John  Adams  to 
his  nephew  William  Cranch  (the  Supreme  Court  Reporter), 
of  March  14,  1790. 

"To  the  original  of  the  Bar  meetings  I  was  a  witness.  .  .  . 
They  introduced  a  candor  and  liberality  in  the  practice 

*  See  The  RcpubUcan  Court,  by  Rufus  W.  Griswold  (1855). 


204  A  HISTORY  OF  THE  A:\IERICAN  BAR 

of  the  Bar  that  was  never  before  known  in  Mass.  Mr. 
Pratt  was  so  sensible  of  their  utihty  that  when  we  took 
leave  of  him  at  Dedham,  his  last  words  to  us  were,  'Breth- 
ren, forsake  not  the  assembling  of  yourselves  together. 
My  advice  to  you  and  all  the  young  gentlemen  coming 
up,  as  well  as  to  those  now  on  the  stage,  is  never  to  suffer 
such  meetings  to  go  into  disuse,  let  who  will  clamor  about 
them.'  .  .  .  What?  is  it  unlawful  for  the  gentlemen  of 
the  profession  to  spend  an  evening  together  once  a  week? 
to  converse  upon  law  and  upon  their  practice;  to  bear 
complaints  of  unkind,  unfair  and  ungentlemanlike  prac- 
tice; to  compare  difference;  to  agree  that  they  will  not 
introduce  ignorant,  illiterate,  or  ill  bred,  or  unprincipled 
students  or  candidates;  that  they  will  not  practice  any 
kind  of  chicanery,  or  take  unmanly  disadvantages  of  one 
another,  to  the  injury  of  clients,  for  accidental  or  inad- 
vertent slips  in  pleading  or  otherwise?" 

And  again  he  wrote: 

"Many  of  these  meetings  were  the  most  delightful  enter- 
tainments I  ever  enjoyed.  The  spirit  that  reigned  was  that 
of  sense,  generosity,  honor,  and  integrity;  and  the  con- 
sequences were  most  happy;  for  the  courts  and  the  Bar, 
instead  of  scenes  of  wrangling,  chicanery,  quibbling  and 
ill  manners,  were  soon  converted  into  order,  decency, 
truth  and  candor.  Mr.  Pratt  was  so  delighted  with  these 
meetings  and  other  effects,  that  when  we  all  waited  upon 
him  to  Dedham  on  his  way  to  New  York  to  take  his  seat  as 
Chief  Justice  of  that  State,  he  said  to  us.  Brethren,  above 
all  things  forsake  not  the  assembling  of  yourselves  together." 

The  intimacy  and  gaiety  of  the  intercourse  between  the 
Bar  and  the  Bench,  is  shown  in  the  account  of  the  condi- 
tions surrounding  James  Sullivan's  practise  in  Massa- 
chusetts and  Maine  in  the  latter  part  of  the  Eighteenth 
Century.^ 

"Professional  habits  were  decidedly  convivial,  and 
gentlemen  thrown  together  for  several  weeks,  often  under 

*  Lije  and  Writings  of  James  Sullivan,  by  R.  G.  Amory. 


EARLY  BARRISTERS,  AND   BAR  ASSOCIATIONS    205 

the  same  roof,  were  quite  disposed  to  be  amused.  The 
manners  of  the  judges  were  not  only  decorous,  and  the 
members  of  the  Bar  were  courteous  and  well-bred;  but 
in  their  familiar  intercourse  there  was  Httle  formality  or 
restraint  and  their  festivities  were  seasons  of  wit  and 
frolic,  and  often  sufficiently  uproarious.  When  the  busi- 
ness of  the  term  was  nearly  completed,  it  was  customary 
for  both  Bench  and  Bar  to  assemble  at  the  tavern  for  a 
social  meeting.  On  these  occasions,  they  constituted  a 
court  among  themselves,  appointing  one  of  their  number 
Chief  Justice,  for  the  trial  of  all  breaches  of  good  fellow- 
ship during  the  term.  Judge  Sewall  describes  one  of  these 
meetings  at  Biddeford,  when  the  inferior  court  was  sitting 
at  Ladd's  Tavern,  there  being  no  court-house  in  the  place. 
John  Lowell  had  arrived,  late  on  Monday  evening,  to 
attend  its  sessions,  and,  finding  the  inn  full,  sought  lodg- 
ings elsewhere,  probably  at  his  friend  Sullivan's,  where 
he  was  always  a  welcome  guest.  He  left  his  horse  tied 
at  the  inn  door,  expecting  it  would  be  properly  cared  for; 
but  the  landlord  never  gave  it  a  thought.  When,  on 
Friday  evening,  a  court  was  held  for  the  hearing  of  all 
omissions  and  commissions  which  had  occurred  during 
the  week,  Ladd  was  called  upon  to  answer  for  leaving  the 
horse  unattended  to,  and  defended  himself  on  the  plea 
that  he  had  received  no  orders  to  put  him  up.  The  case 
was  tried  with  becoming  gravity,  and  the  judge,  upon 
the  evidence,  sentenced  Ladd  to  pay  a  single  bowl  of  good 
punch  for  his  neglect,  and  Lowell  twice  as  much  for  not 
taking  care  of  his  own  steed." 

And  the  same  conviviality  existed  in  the  other  States, 
as  Kennedy's  description  of  the  Virginia  Circuits,  during 
the  early  fife  of  William  Wirt,  shows :  ^ 

"The  riding  of  the  Circuit,  which  always  brought  several 
into  company,  and  the  adventures  of  the  wayside,  gave 
to  the  Bar  a  sportive  and  Hghthearted  love  of  association 
which  greatly  fostered  the  opportunity  and  the  inclination 
for  convivial  pleasure.     A  day  spent  upon  the  road  on 

1  Memoirs  of  the  Life  of  WiUiam  Wirt,  Vol.  I,  by  John  P.  Kennedy  (1849). 


2o6  A  HISTORY  OF  THE  AMERICAN  BAR 

horseback,  the  customary  visits  made  to  friends  upon  the 
way,  the  jest  and  the  song,  the  unchecked  vivacity  in- 
spired by  this  grouping  together  of  kindred  spirits  —  all 
had  their  share  in  imparting  brotherhood.  Then  the 
contests  of  the  Bar  which  followed  in  the  forum,  the  occa- 
sions they  afforded  for  the  display  of  wit  and  eloquence,  and 
the  congratulations  of  friends  were  so  many  additional  pro- 
vocatives to  that  indulgence  which  found  free  scope,  when 
evening  brought  all  together  under  one  roof,  to  rehearse 
their  pleasant  adventures  and  to  set  flowing  the  currents 
of^mirth  and  good  humor,  'to  make  a  night  of  it'  as  the 
phrase  goes.  The  Bar  yet  retains  some  of  these  character- 
istics; but  the  present  generation  (1849)  ^^^.y  but  feebly 
conceive  the  pervading  and  careless  joyousness  with  which 
in  that  early  time  the  members  of  their  mirthful  craft  pur- 
sued their  business  through  a  country  side.  .  .  .  The  present 
generation  will  bear  witness  to  many  an  ancient  green 
room  joke  of  the  circuit." 

In  fact,  many  older  lawyers  have  been  of  the  opinion 
that  the  largest  and  best  part  of  the  legal  education  of  the 
past  was  this  mingUng  of  the  whole  Bar  together  in  travel- 
ling from  county  to  county,  and  from  court  to  court,  the 
enforced  personal  relations  which  were  brought  about,  and 
the  presence  of  the  younger  members  of  the  Bar  during 
the  trials  of  cases  by  their  seniors. 

"An  able  Bar,"  said  Hugh  Blair  Grigsby,  of  Virginia,  in 
his  eulogy  of  L.  W.  Tazewell,  "is  the  best  school  of  law; 
for  of  all  lessons  for  a  student,  the  contests  of  able  men 
with  each  other  in  the  practical  game  of  Ufe  are  the 
best." 

Perhaps  nowhere  was  this  side  of  a  lawyer's  training 
better  summed  up  than  in  the  words  by  Senator  George  F. 
Hoar  (writing,  it  is  true,  of  a  later  period  of  practise  (1845- 
1855,  but  of  a  period  which  had  not  entirely  lost  the  old 
characteristics) :  ^ 

1  Autobiography  of  Seventy  Years,  by  George  F.  Hoar,  Vol.  II. 


EARLY  BARRISTERS,  AND  BAR  ASSOCIATIONS    207 

"The  judge  and  jurymen  and  the  lawyers  from  out  of 
town  used  to  come  into  Worcester  and  stay  at  the  old 
Sykes  or  Thomas  Tavern. 

"The  court  sat  till  six  o'clock  and  often  far  into  the 
evening  and  began  at  half  past  eight  or  nine  —  so  there 
was  no  chance  for  country  lawyers  to  go  home  at  night. 
There  was  great  fun  at  these  old  taverns  in  the  evening 
and  at  meal  time.  .  .  .  The  whole  Bar  and  the  public  seemed 
to  take  an  interest  in  important  trials.  People  came  in 
from  the  country  round  about  with  their  covered  wagon, 
simply  for  the  pleasure  of  attending  court  and  seeing  the 
champions  contend  with  each  other.  The  lawyers  who 
were  not  engaged  in  the  case  were  always  ready  to  help 
those  who  were,  with  advice  and  suggestion.  It  used  to 
be  expected  that  members  of  the  Bar  would  be  in  the 
court  house  hearing  the  trials,  even  if  they  were  not  en- 
gaged in  them.  ...  I  cannot  but  think  that  the  Hstening 
to  the  trial  and  argument  of  causes  by  skilful  advocates 
was  a  better  law  school  than  any  we  have  now  and  that 
our  young  men  especially  in  the  large  cities  fail  to  become 
good  advocates  and  to  learn  the  art  of  putting  on  a  case 
and  of  examining  and  cross  examining  for  want  of  a  con- 
stant and  faithful  attendance  on  the  courts." 

A  similar  glimpse  of  the  sociability  of  the  judges  and 
the  lawyers,  written  of  a  later  period,  but  descriptive  of 
the  earlier  is  to  be  found  in  the  Diary  of  Richard  Henry 
Dana,  Jr.^ 

"March  10,  1853.  Court  at  Dedham.  We  have  very 
pleasant  times  here  at  the  trials.  The  judge,  the  sheriff 
and  the  members  of  the  Bar  from  out  of  town  board  to- 
gether at  the  hotel;  the  judge  sitting  at  the  head  of  the 
table,  and  the  sheriff  at  the  foot,  the  lawyers  seating  them- 
selves by  a  tacit  understanding  according  to  age  and 
importance,  and  there  is  a  good  deal  of  pleasant  conversa- 
tion. At  dinner  there  will  often  be  a  stray  guest  from  Bos- 
ton, who  has  come  up  to  make  a  motion  or  look  after  his 
docket.     Choate,  Bartlett  and  Hallett  dropped  in  on  us 

1  Richard  Henry  Dana,  by  C.  F.  .\dams,  Vol.  I  (1S91). 


2oS  A  fflSTORY  OF  THE  AMERICAN  BAR 

this  week.  Here,  too,  is  the  remnant  of  the  old  style 
in  which  the  courts  used  to  be  received.  The  sheriff  with 
a  long  white  rod  comes  to  the  tavern  and  stands  by  the 
door  and  precedes  the  judge  on  his  way  to  court  and  into 
his  seat,  and  in  the  same  way  conducts  him  back  at  the 
adjournment  each  day." 


PART  TWO 

FEDERAL  BAR 


CHAPTER  X 

PREJUDICES   AGAINST   LAW  AND  XAWYERS 

The  preceding  chapters  have  shown  how,  at  the  time 
of  the  War  of  the  Revolution,  in  each  of  the  American 
Colonies  a  Bar  had  developed,  composed  of  trained  and 
able  lawyers.  The  old  antipathies  towards  the  "attorneys," 
against  whom  so  much  legislation  had  been  directed,  in  the 
earlier  years  had  died  away,  for  the  character  and  talents 
of  the  men  who  undertook  the  practise  of  the  profession 
had  so  distinctly  changed. 

The  services  rendered  by  the  legal  profession  in  the  de- 
fence and  maintenance  of  the  people's  rights  and  liberties, 
from  the  middle  of  the  Eighteenth  Century  to  the  adoption 
of  the  Constitution,  had  been  well  recognized  by  the  people 
in  making  a  choice  of  their  representatives;  for  of  the  fifty- 
sLx  Signers  of  the  Declaration  of  Independence,  twenty-five 
were  lawyers;  and  of  the  fifty-five  members  of  the  Federal 
Constitutional  Convention,  thirty-one  were  lawyers,  of 
whom  four  had  studied  in  the  Inner  Temple,  and  one  at 
Oxford,  under  Blackstone.^  In  the  First  Congress,  ten  of 
the  twenty-nine  Senators  and  seventeen  of  the  sLxty-five 
Representatives  were  law>'ers. 

The  rise  of  the  real  American  Bar,  however,  was  coin- 
cident with  the  birth  of  the  Nation;  and  its  history  may 
be  conveniently  divided  into  three  eras.    The  first  begins 

^  The  S,iprem€  Court  of  the  United  States,  by  Hampton  L.  Carson.  See 
also  Injlucnce  of  the  Bar  in  our  Stale  and  Federal  Government,  by  J.  H. 
Benton,  Jr.  (1894). 


212  A  fflSTORY  OF  THE  AMERICAN  BAR 

witli  the  year  1789  and  ends  Vvith  the  dose  of  the  War  of 
181 2  —  a  period  marked  by  the  growth  of  the  early  Fed- 
eral Bars  composed  chiefly  of  lawyers  from  Pennsylvania, 
ISIaryland  and  Virginia,  by  the  initiation  of  law  schools, 
and  by  the  masterful  work  of  the  great  jurists  of  the  Bars 
in  New  York  and  in  the  New  England  States  who  laid  so 
soHdly  the  foundations  of  the  real  American  Common 
Law.  The  second  period  comprises  the  years  from  1815 
to  1830  —  the  reign  of  Chief  Justice  Marshall  —  when 
the  Federal  Bar  was  composed  of  the  legal  giants  from 
the  Bars  of  all  the  States.  The  third  period  ends  with  the 
outbreak  of  the  Civil  War,  covering  roughly  the  years  of 
ferm.ent  in  the  law,  when  the  chief  task  before  the  legal 
profession  was  the  great  one  of  reformation,  of  adjusting 
the  Common  Law  to  meet  the  flood  of  changing  conditions 
—  social,  economic  and  political  —  for  which  these  years 
were  notable. 

While  the  American  Bar  developed  great  lawyers  and 
great  judges  in  the  period  from  1789  to  181 5,  there  were 
three  obstacles  to  its  growth  and  to  the  study  of  law  as  a 
science.  These  obstructive  factors  were:  first,  the  unpopu- 
larity of  lawyers  as  a  class;  second,  the  bitter  feeling  against 
England  and  English  Common  Law;  third,  the  lack  of  any 
distinct  body  of  American  law,  arising  from  the  non- 
existence of  American  law  reports  and  law  books. 

Nothing  in  legal  history  is  more  curious  than  the  sudden 
revival,  after  the  War  of  the  Revolution,  of  the  old  dislike 
and  distrust  of  lawyers  as  a  class.  For  a  time,  it  seemed 
as  if  their  great  services  had  been  forgotten  and  as  if  their 
presence  was  to  be  deemed  an  injury  to  the  Nation.  There 
were  several  contributing  causes,  however,  which  occasioned 
this  outbreak  of  popular  feeling. 

In  the  first  place,  a  large  number  of  the  most  eminent 
and  older  members  of  the  Bar,  being  Royalists,  had  either 


PREJUDICES  AGAINST  LAW  AND  LAWYERS     213 

left  the  country/  or  retired  from  practise.  Thus,  Mary- 
land was  deprived  of  two  of  her  greatest  advocates,  Daniel 
Dulany  and  George  Chalmers;  Pennsjdvania  lost  John 
Galloway;  New  York  lost  William  Smith,  Jr.,  Thomas 
Barclay  and  John  Tabor  Kempe;  New  Jersey  lost  Josiah 
Ogden.  In  Massachusetts,  the  losses  to  the  Bar  from  this 
cause  were  especially  heavy.  The  situation  was  graphically 
described  in  1824  by  William  Sullivan,  from  his  personal 
recollections.^ 

"Thirteen  of  the  Bar,  .  .  .  were  RoyaHsts  and  left 
the  country;  and  among  them  Jonathan  Sewall,  then 
Attorney-General,  a  man  held  in  high  esteem  for  pro- 
fessional talent;  and  Sampson  Salter  Blowers,  who  en- 
joyed an  honorable  reputation  as  a  lawyer  and  the  esteem 
of  many  affectionate  friends;  Samuel  Quincy,  Timothy 
Ruggles  and  James  Putnam.  Some  who  remained  were 
neutral,  so  far  as  they  could  be,  consistently  with  safety. 
The  Royalists  who  departed,  and  those  who  remained, 
are  not  to  be  censured  at  this  day,  for  conscientious  ad- 
herence to  the  mother  country.  The  former  had  httle 
reason  to  rejoice  in  the  course  which  they  adopted.  Few 
received  such  reward  for  loyalty  as  they  expected.  Some 
exchanged  eminence  in  the  Province  for  appointments, 
such  as  they  were,  in  the  Colonies;  and  some  ease  and 
comfort  here,  for  insignificance  and  obscurity  at  home. 
Most  of  them  deeply  regretted  their  abandonment  of  their 
native  land.  Such  effect  had  the  Revolution  on  the  mem- 
bers of  the  Bar,  that  the  list  of  1779  comprised  only  ten 
barristers  and  four  attorneys,  for  the  whole  State,  who 
were  such  before  the  Revolution."^ 

*  See  Loyalists  of  the  American  Revolidion,  by  Lorenzo  Sabine  (1864). 

It  is  to  be  remembered  that  in  the  American  Colonies  25,000  Loj'alists,  at 
the  least  computation,  took  up  arms  for  the  King.  Sabine  gives  sketches  of 
the  lives  of  at  least  130  lawyers  who  left  the  country  as  Tories;  and  there 
were  several  hundred  other  lawyers  whose  lives  were  not  of  sufficient  note 
to  describe,  but  who  also  became  refugees. 

»  Address  to  Sujfolk  County  Bar,  by  William  Sullivan  (1825). 

»  Emory  Washburn  said  that  in  1775,  when  Levi  Lincoln  (Harvard  1772) 


214  A  HISTORY  OF  THE  AMERICAN  BAR 

Of  the  lawyers  who  remained,  many  were  either  actively 
engaged  in  politics  or  in  the  army;  while  others  had  ac- 
cepted positions  on  the  bench. 

This  left  the  practise  of  the  law  very  largely  in  the  hands 
of  lawyers  of  a  lower  grade  and  inferior  ability. 

Meanwhile,  the  social  and  financial  conditions  of  the 
country  after  the  Revolution  tended  to  produce  great 
unrest.  Interruption  of  business  by  the  war,  and  high 
prices,  had  brought  about  embarrassment  in  all  classes, 
and  an  inabihty  to  meet  their  debts.  Great  Britain,  in 
closing  her  ports  by  navigation  laws  and  prohibitory  duties, 
had  deprived  the  American  industries  of  employment. 
Public  debts  were  enormous,  necessitating  ruinous  taxa- 
tion. The  Federal  Government  owed  to  its  soldiers  large 
sums,  and  pa^Tnent  in  the  paper  money  of  the  time  was 
farcical.  The  Tories  whose  estates  had  been  confiscated 
were  returning  and  making  strenuous  efforts  to  have  their 
property  restored.  English  creditors  were  tr}dng  to  re- 
cover their  claims,  barred  by  various  statutes  of  confisca- 
tion and  sequestration. 

The  chief  law  business,  therefore,  was  the  collection  of 
debts  and  the  enforcement  of  contracts;  and  the  jails 
were  filled  to  overflowing  with  men  imprisoned  for  debt 
under  the  rigorous  laws  of  the  times. ^ 

Irritated  by  this  excessive  litigation,  by  the  increase  of 
suits  on  debts  and  mortgage  foreclosures,  and  by  the  system 
of  fees  and  court  costs  estabhshed  by  the  Bar  Associations, 

settled  in  Worcester  County,  only  two  lawyers  remained  in  the  county,  the 
rest  having  left  the  country. 

See  Mass.  Hist.  Soc.  Proc,  Vol.  XI  (1869). 

*  In  the  little  rural  county  of  Worcester,  Massachusetts,  having  a  popu- 
lation of  less  than  5,000,  there  were  at  one  time  more  than  2,000  actions  on 
the  docket  of  the  Inferior  Court  of  Common  Pleas. 

See  for  an  excellent  account  of  the  condition  of  affairs  at  this  time,  from 
a  lawyer's  standpoint,  the  Life  of  James  Sullivan,  by  T.  G.  Amory. 


PREJUDICES  AGAINST  LAW  AND  LAWYERS      215 

the  people  at  large  mistook  effects  for  cause;  and  attributed 
all  their  evils  to  the  existence  of  lawyers  in  the  community. 
Thus,  in  the  conservative  Httle  town  of  Braintree,  close 
to  Boston,  the  citizens  in  town  meeting,  in  1786,  voted 
that: 

"We  humbly  request  that  there  may  be  such  laws  com- 
piled as  may  crush  or  at  least  put  a  proper  check  or  restraint 
on  that  order  of  Gentlemen  denominated  Lawyers,  the 
completion  of  whose  modern  conduct  appears  to  us  to  tend 
rather  to  the  destruction  than  the  preservation  of  the 
town."  1 

Another  small  town,  Dedham,  instructed  its  representa- 
tives in  the  Legislature  as  follows : 

"We  are  not  inattentive  to  the  almost  universally  prevail- 
ing complaints  against  the  practice  of  the  order  of  lawyers; 
and  many  of  us  now  sensibly  feel  the  effects  of  their 
unreasonable  and  extravagant  exactions;  we  think  their 
practice  pernicious  and  their  mode  unconstitutional.  You 
will  therefore  endeavor  that  such  regulations  be  intro- 
duced into  our  Courts  of  Law,  and  that  such  restraints  be 
laid  on  the  order  of  lawyers  as  that  we  may  have  recourse 
to  the  Laws  and  find  our  security  and  not  our  ruin  in  them. 
If  upon  a  fair  discussion  and  mature  deliberation  such  a 
measure  should  appear  impracticable,  you  are  to  endeavor 
that  the  order  of  Lawyers  be  totally  abolished;  an  alter- 
native preferable  to  their  continuing  in  their  present 
mode." 

Other  communities  were  more  radical,  and  demanded 
the  complete  aboUtion  of  the  legal  profession. 

Such  was  the  popular  discontent  arising  from  all  these 
conditions,  that,  in  Massachusetts,  an  open  rebelhon  broke 
out,  in  1787   (the  well-known  Shays'  Rebellion),  directed 

^  Three  Episodes  of  Massachusetts  History,  by  Charles  Francis  Adams. 
See  also  Remarks  of  Charles  Francis  Adams,  in  Proceedings  of  The  American 
Antiquarian  Society  (October,  1902). 


2i6  A  HISTORY  OF  THE  AMERICAN  BAR 

largely  against  the  courts  and  the  lawyers,  and  requiring 
to  be  put  down  by  military  force. 
As  McMaster  says:  ^ 

"The  lawyers  were  overwhelmed  with  cases.  The  courts 
could  not  try  half  that  came  to  them.  For  every  man  who 
had  an  old  debt,  a  mortgage  or  a  claim  against  a  Tory 
or  Refugee,  hastened  to  have  it  adjusted.  While,  therefore, 
everyone  else  was  idle,  the  lawyers  were  busy;  and  as  they 
always  exacted  a  retainer,  and  were  sure  to  obtain  their 
fees,  grew  rich  fast.  Every  young  man  became  an  attor- 
ney, and  every  attorney  did  well.  Such  prosperity  soon 
marked  them  as  fit  subjects  for  the  discontented  to  vent 
their  anger  on.  They  were  denounced  as  banditti,  as 
blood-suckers,  as  pickpockets,  as  windbags,  as  smooth- 
tongued rogues.  Those  who  having  no  cases  had  Uttle 
cause  to  complain  of  the  lawyers,  murmured  that  it  was 
a  gross  outrage  to  tax  them  to  pay  for  the  sittings  of  courts 
into  which  they  had  never  brought  and  never  would  bring 
an  action.  .  .  .  The  mere  sight  of  a  lawyer  .  .  .  was 
enough  to  call  forth  an  oath  or  a  muttered  curse  from  the 
louts  who  hung  around  the  tavern. 


j> 


McRee,  in  his  Life  of  James  Iredell,  thus  describes  con- 
ditions in  South  Carolina:  ^ 

"  The  return  of  the  Tories,  and  their  strenuous  efforts 
to  procure  the  restoration  of  their  property,  the  activity 
of  the  lawyers,  stimulated  by  the  opening  of  a  lucrative 
career;  the  commencement  of  new,  the  revival  of  long 
dormant  suits  —  all  conspired  to  foster  exasperation,  cupid- 
ity, avarice,  revenge.  ...  A  very  violent  prejudice,  at 
this  period,  existed  in  narrow  and  vulgar  minds  against 
the  legal  profession.  This  antipathy  was  fermented  by 
many  persons  of  more  talent  and  less  principle  as  a  means 
of  destroying  those  whom  they  feared  as  rivals,  and  as  an 
instrument  by  which  they  might  effect  their  political  ends. 
The  lawyers  of  the  State  were  generally  conservatives; 

*  History  of  the  People  of  the  Untied  States,  by  J.  B.  McMaster,  Vol.  I. 

*  Life  and  Times  of  James  Iredell,  by  Griffith  J.  McRee. 


PREJUDICES  AGAINST  LAW  AND  LAW-YERS      217 

hence  it  was  that  they  excited,  in  addition  to  other  causes, 
the  animosity  of  the  radicals;  and  in  a  signal  degree  the 
hatred  of  those  who  may  be  distinctively  and  exclusively 
characterized  as  demagogues,  charlatans  and  political 
tricksters." 

The  Letters  of  an  American  Farmer,  written  in  1787, 
by  H.  St.  John  Crevecoeur,  also  express  the  sentiment  of 
the  time: 

"  Lawyers  are  plants  that  will  grow  in  any  soil  that  is 
cultivated  by  the  hands  of  others,  and  when  once  they 
have  taken  root  they  will  extinguish  every  vegetable  that 
grows  around  them.  The  fortunes  they  daily  acquire  in 
every  province  from  the  misfortunes  of  their  fellow  citizens 
are  surprising.  The  most  ignorant,  the  most  bungling 
member  of  that  profession  will,  if  placed  in  the  most  ob- 
scure part  of  the  country,  promote  litigiousness  and  amass 
more  wealth  than  the  most  opulent  farmer  with  all  his 
toil.  .  .  .  What  a  pity  that  our  forefathers  who  happily 
extinguished  so  many  fatal  customs  and  expunged  from 
their  new  government  so  many  errors  and  abuses  both 
religious  and  civil,  did  not  also  prevent  the  introduction 
of  a  set  of  men  so  dangerous.  .  .  .  The  value  of  our  laws 
and  the  spirit  of  freedom  which  often  tends  to  make  us 
litigious  must  necessarily  throw  the  greatest  part  of  the 
property  of  the  Colonies  into  the  hands  of  these  gentlemen. 
In  another  century,  the  law  will  possess  in  the  North  what 
now  the  church  possesses  in  Peru  and  Mexico." 

Much  the  same  conditions  prevailed  in  all  the  States. 
In  New  Hampshire  and  in  Vermont  there  were  the  same 
widespread  outcries  that  the  courts  should  be  abolished, 
that  the  number  of  lawyers  was  too  large,  that  the  profes- 
sion should  be  entirely  suppressed,  that  their  fees  should 
be  cut  down,  that  the  payment  of  debts  and  the  foreclosure 
of  mortgages  should  be  postponed  by  "stay  acts,"  until 
debtors  could  pay.  There  were  numerous  riots.  The 
debtors  of  Vermont  set  fire   to  their  court-houses;    those 


2iS  A  HISTORY  OF  THE  AMERICAN  BAR 

of  New  Jersey  nailed  up  their  doors.  Lawyers  were  mobbed 
in  the  streets,  and  judges  threatened. 

In  Rhode  Island,  an  act  providing  for  payment  of  debts 
in  paper  money  was  held  unconstitutional,  in  1786,  in  the 
famous  case  of  Trevett  v.  Weedcn;  whereupon  the  Legisla- 
ture passed  an  act  prohibiting  lawyers  from  practising 
unless  they  took  the  test  oath,  agreeing  to  take  paper  money 
at  par. 

When  the  great  debates  were  going  on  in  the  various 
State  conventions,  in  1 787-1 789,  regarding  the  adoption  of 
the  Constitution,  much  of  the  opposition  of  the  anti- 
Constitution  men,  or '  Anti-FederaHsts  as  they  were  later 
called,  was  due  to  the  fact  that  the  proposed  Constitution 
**was  the  work  of  lawyers,"  ^ 

For  nearly  thirty  years  after  the  Revolution,  constant 
efforts  were  made  in  many  States  to  mitigate  the  evil 
and  the  supposed  monopoly  of  lawyers  by  abohshing  the 
system  of  bar-call  and  fees  established  by  courts  or  Bar 
Associations. 

In  Massachusetts,  acts  were  passed,  in  1785  and  1786, 
authorizing  parties  to  a  suit  to  argue  their  own  causes  in 
court  and  forbidding  the  employment  of  more  than  two 
law>'ers  by  either  party.  Plans  for  law  reform  were  urged 
even  by  prominent  members  of  the  Bar,  such  as  John 
Gardiner  ^  —  to  the  disquiet,  however,  of  most  of  their 
fellow  members.  Through  Gardiner's  influence,  resolu- 
tions were  introduced  into  the  Legislature,  in  1790,  to  in- 

*  See  Elliot's  Debates  on  the  Constitution. 

2  John  Gardiner  was  born  in  Boston  in  1731,  and  removed  to  England, 
where  he  studied  law  and  was  called  as  a  barrister  at  the  Inner  Temple. 
He  became  an  intimate  acquaintance  of  Lord  Mansfield,  appeared  as  junior 
counsel  for  the  defendant  in  the  famous  John  Wilkes  case,  and  also  for 
Beardmore  and  Meredith,  two  of  the  publishers  indicted  with  Wilkes.  He 
removed  to  the  Island  of  Saint  Christopher,  where  he  became  Attorney- 
General;   thence  he  came  to  Boston  in  1783. 


PREJUDICES  AGAINST  LAW  AND   LAWYERS       219 

vestigate  "the  present  state  of  the  law  and  its  professors 
in  the  Commonwealth."  A  statute  was  enacted  authoriz- 
ing parties  to  empower  under  seal  any  person  whom  they 
chose,  whether  regular  attorney  or  not,  to  manage  their 
causes. 

Perhaps  the  most  powerful  attacks  on  the  "dangerous" 
and  "pernicious"  "order"  of  lawyers  and  their  "malprac- 
tices, delays  and  extravagant  fees"  were  the  letters  of 
Benjamin  Austin,  an  able  pamphleteer  and  Anti-Federalist 
politician  of  Boston,  who  wrote,  in  17S6,  under  the  name 
of  "Honestus,"  and  whose  letters  had  a  widespread 
influence : 

"The  distresses  of  the  people  are  now  great,  but  if  we 
examine  particularly  we  shall  find  them  owing  in  a  great 
measure  to  the  conduct  of  some  practitioners  of  law.  .  .  . 
Why  this  intervening  order?  The  law  and  evidence  are 
all  the  essentials  required,  and  are  not  the  judges  with  the 
jury  competent  for  these  purposes?  .  .  . 

"The  question  is  whether  we  will  have  this  order  so  far 
established  in  this  Commonwealth  as  to  rule  over  us.  .  .  . 
The  order  is  becoming  continually  more  and  more  power- 
ful. .  .  .  There  is  danger  of  lawyers  becoming  formidable 
as  a  combined  body.  The  people  should  be  guarded  against 
it  as  it  might  subvert  every  principle  of  law  and  establish 
a  perfect  aristocracy.  .  .  .  This  order  of  men  should  be 
annihilated.  .  .  .  No  lawyers  should  be  admitted  to  speak 
in  court,  and  the  order  be  abolished  as  not  only  a  useless 
but  a  dangerous  body  to  the  public." 

The  remedies  he  proposed  were  (a)  an  American  code 
of  law;  (b)  parties  to  appear  in  person  or  by  any  friend 
whether  attorney  or  not;  (c)  referees,  to  take  the  place 
of  courts;  (d)  a  State  Advocate-General,  to  appear  for  all 
persons  indicted.^ 

^  See  Observations  on  lite  Pernicious  Practice  of  the  Law  by  Ilcncstus 
(Benjamin  Austin)  as  Published  occasionally  in  the  Independent  Chronicle 
in  Boston  in  ijS6  (1S19). 


220  A  HISTORY  OF  THE  AMERICAN  BAR 

The  situation  in  Massachusetts  was  described  by 
John  Quincy  Adams,  when  a  senior  in  College,  in  1787, 
as  follows :  ^ 

"At  a  time  when  the  profession  of  the  law  is  laboring 
under  the  heavy  weight  of  popular  indignation;  when 
it  is  upbraided  as  the  original  cause  of  all  the  evils  with 
which  the  Commonwealth  is  distressed;  when  the  Legis- 
lature have  been  pubHcly  exhorted  by  a  popular  writer 
to  abolish  it  entirely,  and  when  the  mere  title  of  lawyer 
is  sufficient  to  deprive  a  man  of  the  public  confidence,  it 
should  seem  this  profession  would  afford  but  a  poor  subject 
for  panegyric;  but  its  real  abihty  is  not  to  be  determined 
by  the  short-Hved  frenzy  of  an  inconsiderate  multitude  nor 
by  the  artful  misrepresentations  of  an  insidious  writer." 

And  further  in  a  letter  to  his  mother,  in  December, 
1787: 

"The  popular  odium  which  has  been  excited  against 
the  practitioners  in  this  Commonwealth  prevails  to  so 
great  a  degree  that  the  most  innocent  and  irreproachable 
life  cannot  guard  a  lawyer  against  the  hatred  of  his  fellow 
citizens.  The  very  despicable  writings  of  Honestus  were 
just  calculated  to  kindle  a  flame  which  will  subsist  long 
after  they  are  forgotten.  ...  A  thousand  Hes  in  addition 
to  these  pubHshed  in  the  papers  have  been  spread  all  over 
the  country  to  prejudice  the  people  against  the  'order,' 
as  it  has  invidiously  been  called;  and  as  a  free  people 
will  not  descend  to  disguise  their  sentiments,  the  gentle- 
men of  the  profession  have  been  treated  with  contemptu- 
ous neglect  and  with  insulting  abuse.  Yet  notwithstanding 
all  this,  the  profession  is  rapidly  increasing  in  numbers, 
and  the  little  business  to  be  done  is  divided  into  so  many 
shares  that  they  are  in  danger  of  starving  one  another; 
when  I  consider  the  disadvantages  which  are  in  a  degree 
peculiar  to  the  present  time  ...  I  confess  I  am  some- 
times almost  discouraged  and  ready  to  wish  I  had  engaged 
in  some  other  line  of  life." 

'  Diary  of  John  Quincy  Adams  —  Mass.  Hist.  Soc.  Proc,  2d  Series,  Vol. 
XYl  (1902). 


PREJUDICES  AGAINST  LAW  AND  LAWYERS       221 

Even  as  late  as  1803-1806,  the  public  dissatisfaction,  in 
Pennsylvania,  against  the  legal  profession  and  the  judicial 
system  generally,  culminated  in  a  series  of  statutes,  which, 
in  the  language  of  an  old  lawyer  of  that  State,  "betray  a 
more  anxious  than  wise  desire  to  make  every  man  his  own 
lawyer.  .  .  .  Then  the  Common  Law  was  looked  on  with 
jealousy  and  the  profession  of  the  law  regarded  with 
distrust."  ^ 

These  statutes  provided  an  elaborate  machinery  by 
which  a  party  having  a  claim  or  debt  might  file  a  state- 
ment in  court,  the  other  party  might  file  an  answer  in  in- 
formal shape,  and  thereupon  the  case  should  proceed  to 
judgment  without  the  intervention  of  counsel.  Provi- 
sions were  also  made  for  decision  of  cases  by  arbitrators. 

An  interesting  reference  to  the  state  of  affairs  is  found 
in  a  letter  of  Charles  Jared  Ingersoll,  of  Philadelphia,  in 
December,  1803:  ^ 

"I  am  jogging  on  my  professional  path.  My  father 
nudges  me  along,  and  the  Governor  has  given  me  a  publick 
room  adjoining  the  court,  where  I  have  established  my 
desk  and  arm-chair.  .  .  .  Our  State  rulers  threaten  to 
lop  away  that  excrescence  on  civilization,  the  Bar;  and 
Counsellor  Ingersoll  declares  he  '11  go  to  New  York.  All 
the  eminent  law^'ers  have  their  eyes  on  one  city  or  another, 
to  remove  to  in  case  of  extremes." 

One  of  the  most  powerful  attacks  upon  lawyers  and  the 
system  of  law  administration,  and  an  attack  which  repre- 
sented the  general  popular  attitude,  was  a  pamphlet  written 
by  William  Duane  of  Philadelphia  entitled  "Sampson 
Against  the  Philistines  or  the  Reformation  of  Lawsuits  and 
Justice  made  cheap,  speedy  aiui  brought  home  to  every  man^s 
door  agreeably  to  the  Principles  of  the  Ancient  Trial  by  Jury 

'  Discourse  before  the  Law  Academy,  by  R.  McCall  (1838). 
*  Life  of  Cliarles  Jared  Ingersoll,  by  William  M.  Meigs. 


222  A  HISTORY  OF  THE  AMERICAN  BAR 

hejore  the  same  was  innovated  by  Judges  and  Lawyers,''^ 
published  in  1804-1805.  Duane  was  the  editor  of  the  Re- 
pubhcan  newspaper  organ,  the  Aurora;  and  to  his  vigor- 
ous but  rancorous  pen  Jefferson  attributed  in  large  part 
his  election  to  the  presidency.  He  had  himself  been  tried 
for  seditious  riot  in  Philadelphia,  in  1799,  and  acquitted  — 
a  case  growing  out  of  the  unpopular  AHen  and  Sedition 
Acts. 

The  following  extracts  illuminate  clearly  the  popular 
sentiments  regarding  lawyers.  It  is  interesting  to  note 
that  Duane  calls  the  profession  "our  national  aristocracy," 
a  phrase  repeated  thirty  years  later  by  De  Tocqueville: 

"The  profession  of  the  law  assumes  in  every  State  a 
poUtical  consequence,  which,  considering  the  use  which  is 
made  of  it,  has  become  truly  a  subject  of  the  most  serious 
concern;  the  loose  principles  of  persons  of  that  profession; 
their  practice  of  defending  right  and  wrong  indifferently 
for  reward;  their  open  enmity  to  the  principles  of  free 
government,  because  free  government  is  irreconcilable  to 
the  abuses  upon  which  they  thrive ;  the  tyranny  which  they 
display  in  the  courts;  and  in  too  many  cases  the  obvious 
understanding  and  collusion  which  prevails  among  the 
members  of  the  bench,  the  bar,  and  the  officers  of  the 
court,  demand  the  most  serious  interference  of  the  legis- 
lature and  the  jealousy  of  the  people.  .  .  . 

"A  privileged  order  or  class,  to  whom  the  administration 
of  justice  is  given  as  a  support,  first  employ  their  art  and 
influence  to  gain  legislation;  they  then  so  manage  legis- 
lation as  never  to  injure  themselves;  and  they  so  manage 
justice  as  to  engross  the  general  property  to  themselves 
through  the  medium  of  Ktigation;  and  the  misfortune 
is,  that  to  be  able  to  effect  this  point,  it  is  attended  by 
loss  of  time,  by  delay,  expense,  ill  blood,  bad  habits,  les- 
sons of  fraud  and  temptation  to  villainy,  crimes,  punish- 
ments, loss  of  estate,  character  and  soul,  pubUc  burden, 
and  even  loss  of  national  character." 

Duane  then  compared  the  mystery  with  which  the  old 


PREJUDICES  AGAINST  LAW  AND  LAW^YERS      223 

English  clergy  surrounded  the  Bible  before  it  was  printed 
in  English  to  the  "farrago  of  finesse  and  intricacy  and  ab- 
struseness"  to  which  the  lawyers  had  brought  the  science 
of  law. 

His  remedy  was  to  promote  speedy  trials  by  confining 
the  courts  to  local  and  county  tribunals  with  scant  and 
difiicult  right  of  appeal,  and  "if  a  lawyer  should  be  thought 
necessary,  let  him  be  appointed  and  paid  by  goverrmient 
to  assist  to  arrange  and  represent  each  party's  cause  to 
the  jury."  He  also  advocated  a  radical  extension  of  a 
system  of  arbitration.  He  pointed  out  that  when  unbe- 
fogged  by  the  sophistries  of  professionals,  the  law  was  not 
so  mysterious  and  intricate  as  it  seemed,  and  that  if  there 
were  no  lawyers,  every  man  might  acquire  law  for  himself: 

"So  long  as  justice  can  be  demanded  only  by  professional 
lawyers,  so  long  will  the  knowledge  of  it  be  the  exclusive 
property  of  the  profession,  and  none  will  think  it  worth 
while  to  read  what  to  him  appears  useless.  If,  on  the 
contrary,  it  was  not  necessary  to  employ  these  professors 
to  ask  for  justice,  law  would  soon  become  a  part  of  academic 
study,  and  no  youth  would  leave  college  without  reading 
Blackstone  and  Wilson;  they  would  bring  home  their 
books  of  law,  with  their  books  of  history,  geography  and 
ancient  languages.  By  this  means,  and  the  practice  every 
man  would  find  in  his  private  business,  in  helping  his 
neighborhood  to  settle  and  adjust  disputes,  etc.,  society 
would  be  prodigiously  advanced  in  knowledge  and  respect- 
ability of  talents  for  legislators  and  statesmen." 

In  fact,  one  of  the  leading  causes  for  this  popular  odium 
of  the  profession  was  the  general  feeling  that  the  intrica- 
cies of  special  pleading  which  made  the  law  so  mysterious 
and  unintelligible  to  laymen,  the  technicalities  of  the  old 
Common  Law,  and  the  jargon  of  Latin,  French  and  un- 
familiar terms  in  which  it  was  so  often  expressed  were  all 
tricks  of  the  trade,  designed  and  purposely  kept  in  force 


224  A  HISTORY  OF  THE  AMERICAN  BAR 

by  the  Bar,  in  order  to  make  acquisition  of  a  knowledge 
of  the  law  difficult  to  the  public,  and  in  order  to  constitute 
themselves  a  privileged  class  and  monopoly. 

As  early  as  1764,  Governor  Golden  of  New  York  had  ex- 
pressed this  feeling  in  a  letter  to  the  Earl  of  Hahfax: 

"I  have  often  thought  that  lawyers  have  introduced 
misteries  and  absurdities  into  their  law  forms  that  man- 
kind in  general  who  are  not  lawyers  may  not  in  such  cases 
have  the  use  of  their  own  reason,  in  judging  of  them." 

In  a  sketch  of  Ghief  Justice  Parsons,  written  in  182 1, 
the  popular  conception  of  the  attitude  of  lawyers  towards 
the  community  in  1774  is  thus  described:  ^ 

"When  Parsons  came  to  the  Bar,  in  every  case  of  impor- 
tance, all  was  thought  to  depend  on  the  learning,  sagacity, 
cunning  and  eloquence  of  counsel.  It  would  have  been  in 
vain  for  any  one  man  to  have  attempted  a  reformation, 
for  most  practitioners  at  that  period  would  have  united 
against  a  change,  from  the  mistaken  idea  that  business 
depended  on  giving  an  air  of  mystery  to  the  proceedings 
of  the  profession;  forgetting  that  no  science,  however  dif- 
ficult to  attain,  has  any  mystery  in  its  farthest  researches 
or  in  its  remotest  principles.  It  can  hardly  be  believed 
at  this  day,  but  it  is  a  fact,  that  many  old  lawyers,  who 
were  in  full  practice  when  Blackstone's  Commentaries  first 
appeared  in  the  country,  were  frequently  heard  to  regret 
and  complain  that  he  should  have  so  simplified  and  ar- 
ranged his  subject,  and  so  clearly  explained  the  principles 
of  law,  that  the  same  amount  of  knowledge,  which  had 
cost  them  many  years  to  collect,  might  be  obtained  in  a 
short  time." 

Parallel  with  this  animosity  against  lawyers  as  a  class 
was  the  prejudice  against  the  system  of  English  Gommon 
Law  on  which  the  courts  based  their  decisions  —  a  prejudice 

^  Biographical  Sketches  of  Great  Lawyers  and  Statesmen,  by  Samuel  L. 
Knapp  (1821). 


PREJUDICES  AGAINST  LAW  AND  LAWTERS       225 

felt,  not  only  by  many  intelligent  as  well  as  unintelligent 
laymen,  but  also  by  many  American  lawyers  themselves. 

After  the  Revolution,  there  had  been  much  discussion 
in  the  courts  as  to  the  extent  to  which  the  Common  Law 
of  England  was  binding.  Some  States  had  expressly 
adopted,  in  their  Constitutions,  such  parts  of  the  Common 
Law  as  formed  the  law  of  the  Colonies  prior  to  1775  or 
1776  or  to  the  date  of  the  State  Constitution  —  New  York, 
New  Jersey,  Delaware,  Maryland,  Rhode  Island,  New 
Hampshire.  In  other  States  there  had  been  much  feeling 
of  uneasiness  until  some  authoritative  declaration  should 
be  made.' 

All  parties,  of  course,  agreed  that  English  law,  since 
the  Revolution,  had  no  binding  force  whatever;  but  many 
of  the  Anti-Federalists  claimed  that  the  English  law  prior 
to  the  Revolution  had  no  force  in  the  United  States  except 
and  by  virtue  of  these  express  Constitutions  and  statutes. 

They  sought  to  eliminate  entirely  English  law  from  the 
United  States;  and  their  position  is  well  stated  in  a  letter 
of  Jefferson  to  John  Tyler,  Judge  of  the  United  States  Dis- 
trict Court  in  Virginia,  written  in  1812:  - 

"I  deride  with  you  the  ordinary  doctrine  that  we  brought 
with  us  from  England  the  Common  Law  rights.  This 
narrow  notion  was  a  favorite  in  the  first  moment  of  ral- 
lying to  our  rights  against  Great  Britain.  But  it  was  that 
of  men  who  felt  their  rights  before  they  had  thought  of 
their  explanation.  The  truth  is  that  we  brought  with 
us  the  rights  of  men.  On  our  arrival  here,  the  question 
would  at  once  arise,  by  what  law  will  we  govern  ourselves. 
The  resolution  seems  to  have  been,  by  that  system  with 

*  Tlte  Adoption  of  the  Common  Law  by  the  American  Colonies  —  Amcr. 
Law  Register,  Vol.  XXI  (1882). 

As  to  how  far  the  Common  Law  has  been  adopted  in  the  various  States, 
see  Amer.  and  Eng.  Encycl.  of  Law,  2d  ed.,  Vol.  VI,  p.  286,  note  3. 

2  Letters  and  Times  of  the  Tylers,  by  Lyon  G.  Tyler,  Vol.  I  (1884). 


226  A  HISTORY  OF  THE  AMERICAN  BAR 

which  we  are  familiar,  to  be  altered  by  ourselves  occa- 
sionally and  adapted  to  our  new  situation.  .  .  .  The 
state  of  the  English  law  at  the  date  of  our  emigration 
constituted  the  system  adopted  here.  We  may  doubt, 
therefore,  the  propriety  of  quoting  in  our  courts  Enghsh 
authorities  subsequent  to  that  adoption,  still  more  the 
admission  of  authorities  posterior  to  the  Declaration  of 
Independence,  or  rather  to  the  accession  of  that  King 
whose  reign  ab  initio  was  that  every  tissue  of  wrongs  which 
rendered  the  Declaration  at  length  necessary.  .  .  .  This 
relation  to  the  beginning  of  his  reign  would  add  the  advan- 
tage of  getting  us  rid  of  all  Mansfield's  innovations." 

Tyler  himself,  when  Governor  of  Virginia,  in  a  message 
to  the  Legislature,  had  spoken  of 

''the  unfortunate  practice  of  quoting  lengthy  and  numer- 
ous British  cases;  the  time  of  the  court  being  taken  up 
in  reconcihng  absurd  and  contradictory  opinions  of  for- 
eign judges  which  certainly  can  be  no  part  of  an  American 
judge's  duty.  .  .  .  Shall  we  forever  administer  our  free 
republican  government  on  the  principles  of  a  rigid  and 
high  toned  monarchy?" 

And  when  he  became  a  Federal  judge,  he  used  his  utmost 
endeavor  to  eradicate  the  influence  of  English  law,  prece- 
dents and  citations;  and  he  held  that: 

"As  soon  as  we  had  cut  asunder  the  ligatures  that  bound 
us  together  as  parent  and  children,  the  Common  Law 
was  done  away  until  we  saw  fit  to  establish  so  much  of  it 
as  did  not  contravene  our  repubhcan  system." 

Francis  Xavier  Martin  in  the  preface  to  his  collection 
of  the  English  statutes  in  force  in  North  Carolina  in  1792, 
said: 

"  It  will  at  least  disseminate  the  knowledge  of  a  number 
of  laws  by  which  this  people  of  this  State  are  to  be  gov- 
erned; until,  substituting  acts  of  their  own  legislature  to 
those  their  forefathers  brought  over  from  Great  Britain, 


PREJUDICES  AGAINST  LAW  AND   LAW^^ERS      227 

they  will  shake  off  this  last  seeming  badge  and  mortifying 
memento  of  their  dependence  on  her." 

At  political  dinners  and  meetings,  toasts  like  the 
following  were  of  frequent  occurrence  —  "The  Common 
Law  of  England:  may  wholesome  statutes  soon  root  out 
this  engine  of  oppression  from  America."  ^ 

It  was  this  same  spirit  which  led  the  New  Hampshire 
judges  of  the  Supreme  Court  (i 785-1800)  to  put  to  rout 
counsel  arguing  before  them,  by  declining  to  listen  to 
citations  from  "musty,  old  worm-eaten  books,"  and  by 
stating  that  "not  Common  Law  —  not  the  quirks  of 
Coke  and  Blacks  tone  but  common  sense"  should  control 
their  decisions. 

And  as  James  Kent  said  of  his  early  experience  on  the 
bench : 


{(f 


'We  had  but  few  American  precedents.  One  judge 
was  democratic,  and  my  brother,  Spencer,  particularly  of 
a  bold,  vigorous,  dogmatic  mind  and  overbearing  manner. 
English  authority  did  not  stand  very  high  in  these  early 
feverish  times,  and  this  led  me  a  hundred  times  to  bear 
down  opposition  or  shame  it  by  exhaustive  research  and 
overwhelming  authority." 

It  was  from  this  anti-English  sentiment  in  New  York 
that  at  least  one  lasting  and  invaluable  addition  to  Ameri- 
can law  was  made,  in  the  introduction  by  Kent  of  civil 
law  principles,  of  which  he  wrote: 

"Between  1799  and  1804,  I  read  Valin  and  Emerigon, 
and  completely  abridged  the  latter.  ...  I  made  much 
use  of  the  Corpus  Juris,  and  as  the  judges  (Livingston 
excepted)  knew  nothing  of  French  or  Civil  law  I  had  im- 
mense advantage  over  them.  I  could  generally  put  my 
brethren  to  rout  and  carry  my  point  by  my  mysterious 

i  See  account  of  the  Fourth  of  July  celebration  in  Cambridge  in  the 
Columbian  Centinel  (Boston,  July  11,  1801). 


228  A  HISTORY  OF  THE  AMERICAN  BAR 

wand  of  French  and  Civil  law.  The  judges  were  Repub- 
licans and  very  kindly  disposed  to  everything  that  was 
French  and  this  enabled  me  without  exciting  any  alarm 
or  jealousy  to  make  free  use  of  such  authorities  and  thereby 
enrich  our  commercial  law." 

Many  lawyers  as  well  as  laymen  felt  that  what  was 
needed  was  a  law  wholly  and  strictly  American.  Thus 
wrote  Benjamin  Austin: 

"Instead  of  the  numerous  codes  of  British  law,  we 
should  adopt  a  concise  system,  calculated  upon  the  plainest 
principles  and  agreeable  to  our  RepubHcan  government. 
This  would  render  useless  hundreds  of  volumes  which  only 
serve  to  make  practice  mysterious.  .  .  . 

"One  reason  of  the  pernicious  practice  of  the  law  and 
what  gives  great  influence  to  the  'order'  is  that  we  have 
introduced  the  whole  body  of  English  laws  into  our  courts. 
WTiy  should  these  States  be  governed  by  British  laws? 
Can  the  monarchical  and  aristocratical  institutions  of 
England  be  consistent  with  the  repubUcan  principles  of 
our  Constitution?  ...  We  may  as  well  adopt  the  laws 
of  the  Medes  and  Persians.  .  .  .  The  numerous  precedents 
brought  from  'old  English  authorities'  serve  to  embar- 
rass all  our  judiciary  causes  and  answer  no  other  purpose 
than  to  increase  the  influence  of  lawyers." 

T^Iingled  with  the  antagonism  to  anything  savoring  of 
England  and  monarchy  in  our  law  was  another  factor, 
the  influence  of  which  was  felt  in  the  decisions  of  the  United 
States  courts  for  nearly  seventy-five  years  of  our  early 
jurisprudence  —  namely,  the  jealousy  of  the  individual 
States  at  any  infringement  by  the  National  Government 
on  their  State  jurisdiction.  In  the  early  cases  brought 
before  the  Federal  courts,  the  doctrine  was  upheld  that 
these  courts  were  bound  by  the  Common  Law  of  England 
as  the  national  Common  Law  of  this  country. 

In  1793,  Judges  Jay,  Wilson,  Iredell  and  District  Judge 
Peters  held  all  violations  of  treaties  were  indictable  with- 


PREJUDICES  AGAINST  LAW  AND  LAW^TERS      229 

out  a  Federal  statute;  almost  at  the  same  time,  before 
Judges  Iredell,  Wilson  and  Peters,  an  American  was  in- 
dicted at  Common  Law,  for  sending  threatening  letters  to 
the  British  Minister.^  In  1794,  it  was  also  laid  down  as 
law  by  Judge  Iredell,  in  a  charge  to  the  Grand  Jury,  and 
by  Chief  Justice  Jay  in  a  case  in  Pennsylvania. 

"  Such  was  the  state  of  the  law  when  Judge  Chase,  in 
U.  S.  V.  Worrall  (2  Dall.),  in  1798  (Chief  Justice  Jay, 
Judge  Wilson  and  Judge  Iredell  being  no  longer  on  the 
Bench,  and  Chief  Justice  Ellsworth  being  abroad),  without 
waiting  to  learn  what  had  been  decided  by  his  predeces- 
sors, startled  both  his  colleagues  and  the  Bar  by  announc- 
ing that  he  would  entertain  no  indictments  at  Common 
Law.  No  reports  being  then  or  for  a  long  time  afterwards 
published,  of  the  prior  rulings  to  the  contrary,  it  is  not  to 
be  wondered  that  the  judges  who  came  on  the  Bench 
after  Judge  Chase  supposed  that  he  stated  the  practice 
correctly."  ^  s 

This  decision,  as  stated  above,  caused  an  immense  ex- 
citement among  lawyers,  and  many  protests  were  made 
against  it  by  those  of  Federalist  politics,  who  lamented 
this  denial  of  Common  Law  jurisdiction.     Their  feeling 

1  See  Ilenfield's  Case  in  Wharton's  State  Trials,  p.  49;  Wharton's  State 
Trials,  p.  651;  Lives  of  the  Chief  Justices,  by  G.  Van  Santvoord;  Constitu- 
tional Law,  by  T.  Sergeant  (1822).  See  also  Federal  Common  Law  in  Vir- 
ginia Law  Register  (1904). 

2  See  Wharton's  Criminal  Law,  Vol.  I,  p.  168. 

P.  S.  DuPonceau  wrote  in  1824  that:  "This  decision  of  Judge  Chase 
made  a  great  noise  at  the  time  and  left  vague  but  strong  impressions,  the 
more  so  as  he  was  known  to  be  a  man  of  deep  learning  and  considerable 
strength  of  mind,  and  more  disposed  to  extend  than  to  limit  power." 

See  also  Review  of  DiiPonceau's  Dissertation  on  the  Nature  and  Extent  of 
the  Jurisdiction  of  the  Courts  of  the  United  Stales,  April  22,  1824,  by  Charles 
J.  Davies,  in  North  Amer.  Review,  Vol.  XXI  (1S25),  in  which  he  says:  "The 
opinion  of  Judge  Chase  seems  to  have  been  reverenced  as  a  sort  of  perpetual 
edict." 


230  A  HISTORY  OF  THE  AMERICAN  BAR 

was  expressed,  as  late  as  1820,  by  John  Quincy  Adams  in 
his  Diary,  in  his  view  of  the  life  of  Samuel  Chase:  ^ 

"I  considered  Mr.  Chase  as  one  of  the  men  whose  life, 
conduct,  and  opinion  had  been  of  the  most  extensive 
influence  upon  the  Constitution  of  this  country.  ...  He 
himself  as  a  Judge  had  settled  other  (principles)  of  the 
highest  importance  —  one  of  them  in  my  opinion  of  very 
pernicious  importance.  He  decided,  as  I  think,  directly 
in  the  face  of  an  amendatory  article  of  the  Constitution 
of  the  United  States  (the  seventh)  that  the  Union  in  its 
federative  capacity  has  no  Common  Law  —  a  decision 
which  has  crippled  the  powers  not  only  of  the  Judiciary 
but  of  all  the  Departments  of  the  National  Government. 
The  reasons  upon  which  he  rested  that  decision  are  not 
sound,  but,  as  they  flattered  the  popular  prejudices,  it 
has  remained  unreversed  to  this  day." 

Equally  strenuous,  however,  were  the  opponents  of  such 
Common  Law  jurisdiction;  and  Jefferson  wrote  to  Edmund 
Randolph,  August  18,  1799:^ 

"Of  aU  the  doctrines  which  have  ever  been  broached  by 
the  Federal  government  the  novel  one,  of  the  Common  Law- 
being  in  force  and  cognizable  as  an  existing  law  in  their 
courts,  is  to  me  the  most  formidable.  All  their  other 
assumptions  of  un-given  powers  have  been  in  the  detail. 
The  bank  law,  the  treaty  doctrine,  the  sedition  act,  the 
alien  act,  the  undertaking  to  change  the  State  laws  of 
evidence  in  the  State  courts  by  certain  parts  of  the  stanip 
act,  etc.,  etc.,  have  been  soUtary,  inconsequential,  timid 
things  in  comparison  with  the  audacious,  barefaced  and 
sweeping  pretension  to  a  system  of  law  for  the  United 
States  without  the  adoption  of  their  Legislature,  and  so 

1  Diary  of  John  Quincy  Adams,  Vol.  V,  Dec.  i8,  1820.  See  also  W. 
Rawle's  Constitution  of  the  United  States,  in  which,  as  late  as  1825,  he  strenu- 
ously sustained  the  doctrine  that  the  United  States  courts  possessed  a 
Common  Law  criminal  jurisdiction. 

2  See  also  letters  of  November,  1785,  August  19,  i799,  October  29, 
1799,  June  12,  1817,  in  Writings  of  Thomas  JeJJerson,  Vols.  IV,  X  (1892). 


PREJUDICES  AGAINST  LAW  AND  LAWYERS      231 

infinitely  beyond  their  power  to  adopt.  If  this  assumption 
be  yielded  to,  the  State  courts  may  be  shut  up  as  there  will 
then  be  nothing  to  hinder  citizens  of  the  same  State  suing 
each  other  in  the  Federal  courts  in  every  case,  as  on  a 
bond  for  instance,  because  the  Common  Law  obliges  the 
payment  of  it  and  the  Common  Law  they  say  is  their 
law." 

In  January,  1800,  the  opposition  took  the  form,  in  Vir- 
ginia, of  an  instruction  from  the  General  Assembly  to  its 
Senators  and  Representatives  in  Congress, 

"to  use  their  best  efforts  to  oppose  the  passing  of  any  law 
founded  on  recognizing  the  principle  lately  advanced  that 
the  Common  Law  of  England  is  in  force  under  the  Govern- 
ment of  the  United  States. 

"The  General  Assembly  of  Virginia  would  consider 
themselves  unfaithful  to  the  trust  reposed  in  them  were 
they  to  remain  silent,  whilst  a  doctrine  has  been  pubhcly 
advanced,  novel  in  its  principles  and  tremendoiis  in  its 
consequences:  That  the  Common  Law  of  England  is  in 
force  under  the  government  of  the  United  States.  It  is 
not  at  this  time  proposed  to  expose  at  large  the  mon- 
strous pretensions  resulting  from  the  adoption  of  this 
principle.  It  ought  never,  however,  to  be  forgotten,  and 
can  never  be  too  often  repeated,  that  it  opens  a  new  tri- 
bunal for  the  trial  of  crimes  never  contemplated  by  the 
federal  compact.  It  opens  a  new  code  of  sanguinary 
criminal  law,  both  obsolete  and  unknown,  and  either 
wholly  rejected  or  essentially  modified  in  almost  all  its 
parts  by  State  institutions.  It  arrests  or  supersedes  State 
jurisdictions,  and  innovates  upon  State  laws.  It  subjects 
the  citizens  to  punishment,  according  to  the  judiciary 
will,  when  he  is  left  in  ignorance  of  what  this  law  enjoins 
as  a  duty  or  prohibits  as  a  crime.  It  assumes  a  range  of 
jurisdiction  for  the  Federal  courts  which  defies  limitation 
or  definition.  In  short,  it  is  believed  that  the  advocates 
for  the  principle  would  themselves  be  last  in  an  attempt 
to  apply  it  to  the  existing  institution  of  Federal  and  State 
courts,  by  separating  with  precision  their  judiciary  rights, 


232  A  HISTORY  OF  THE  AMERICAN  BAR 

and  thus  preventing  the  constant  and  mischievous  inter- 
ference of  rival  jurisdictions." 

Finally,  the  prejudices  of  the  people  crystallized  in  radi- 
cal legislation.  In  1799,  the  State  of  New  Jersey  actually 
passed  a  statute,  forbidding  the  Bar  to  cite  or  read  in  court 
any  decision,  opinion,  treatise,  compilation  or  exposition 
of  Common  Law  made  or  written  in  Great  Britain  since 
July  I,  1776,  and  prescribed  heavy  penalties. 

In  1807,  the  State  of  Kentucky  followed  suit  with  a 
statute,  providing  that  reports  and  books  of  decisions  in 
Great  Britain  since  July  4,  1776,  "shall  not  be  read  or  con- 
sidered as  authority  in  any  of  the  courts."  Under  this 
statute,  the  court  went  so  far  as  to  stop  Henry  Clay  from 
reading  from  3  East's  Reports  200  that  portion  of  an  opinion 
of  Lord  EUenborough  which  stated  the  ancient  law  prior 
to  1776  (see  Hickman  v.  Bojfman,  Hardin's  Reports  356). 

In  Pennsylvania,  the  feeUng  against  the  Common  Law 
took  shape,  in  1802-1805,  in  the  impeachment  trial  of  the 
Chief  Justice  and  judges  of  the  Supreme  Court,  Edward 
Shippen,  Jasper  Yeates  and  Thomas  Smith,  charged  with 
a  single  "arbitrary  and  unconstitutional  act,"  that  of  sen- 
tencing Thomas  Passmore  to  jail  for  thirty  days  and  im- 
posing a  $50  fine  for  a  "supposed  contempt,"  the  ground 
of  the  impeachment  being  that  punishment  for  contempt 
of  court  was  a  piece  of  English  Common  Law  barbarism, 
imsuited  to  this  country  and  illegal.^ 

1  Tke  Courts  from  the  Revolution  to  the  Revision  of  the  Civil  Code,  by 
William  H.  Loyd,  Jr.,  Univ.  of  Penn.  Law  Review,  Vol.  LVI  (1908). 

See  also  for  a  highly  colored  account  of  this  case  Sampson  against  the  Phil- 
istines, by  William  Duane  (1805). 

In  this  trial,  in  which  Caesar  A.  Rodney  (later  United  States  Attorney- 
General,  appeared  for  the  prosecution,  and  Alexander  J.  Dallas  and  Jared 
Ingersoll  for  the  defendants,  occurred  one  of  the  finest  pleas  in  behalf  of  the 
Common  Law,  in  the  annals  of  American  legal  history. 

The   following   extract   from  Dallas'  argument,  as  reproduced  in  bis 


PREJUDICES  AGAINST  LAW  AND   LAWYERS       233 

The  result  of  the  trial  being  the  acquittal  of  the  judges, 
public  sentiment  against  the  English  law  was  still  further 
inflamed  in  Pennsylvania;  and  in  1810,  a  statute  was 
passed  (and  not  repealed  until  1836),  forbidding  the  cita- 
tion of  any  English  decision  made  since  July  4,  1776,  ex- 
cept in  cases  involving  the  law  of  nations  and  maritime  law.^ 

Address  to  the  Republicans  of  Pennsylvania,  June,  1805,  is  well  worthy  of 
preservation: 

"In  depicting  the  Common  Law,  they  have  ransacked  the  cells  of  monks; 
they  have  pillaged  the  lumber  of  colleges;  they  have  revived  the  follies  of 
a  superstitious  age;  they  have  brandished  the  rigors  of  a  military  despot- 
ism; but  in  all  this  rage  of  research  they  have  forgotten  or  concealed  that 
such  things  enter  not  into  the  composition  of  the  Common  Law  of  Pennsyl- 
vania; for  the  Constitution  tolerates  only  that  portion  of  the  Common  Law 
which  your  ancestors  brought  voluntarily  with  them  to  the  wilderness  as  a 
birthright.  Let  us  not  therefore  be  ensnared  by  prejudices  nor  be  deceived 
by  mere  similitude  of  names.  Every  nation  has  its  common  law.  The  Com- 
mon Law  of  Pennsylvania  is  the  Common  Law  of  England,  as  stripped  of 
its  feudal  trappings,  as  originally  suited  to  a  colonial  condition,  as  modified 
by  acts  of  the  General  Assembly,  and  as  purified  by  the  principles  of  the 
Constitution.  For  the  varying  exigencies  of  social  life,  for  the  complicated 
interests  of  an  enterprising  nation,  the  positive  acts  of  the  Legislature  can 
provide  little,  and,  independent  of  the  Common  Law,  rights  would  remain 
forever  without  remedies  and  wrongs  without  redress.  The  law  of  nations, 
the  law  of  merchants,  the  customs  and  usages  of  trade,  and  even  the  law  of 
every  foreign  country  in  relation  to  transitory  contracts  originating  there  but 
prosecuted  here,  are  parts  of  the  Common  Law  of  Pennsylvania.  It  is  the 
Common  Law,  generally  speaking,  not  an  Act  of  Assembly  that  assures  the 
title  and  the  possession  of  your  farms  and  your  houses,  and  protects  your 
persons,  your  liberty,  your  reputation,  from  violence;  that  defines  and 
punishes  offences;  that  regulates  the  trial  by  jury;  and  that  gives  efficacy 
to  the  fundamental  principles  of  the  Constitution  —  simply  because  it 
originated  in  Europe  cannot  afford  a  better  reason  to  abandon  it,  than  to 
renounce  the  English  or  German  languages,  or  to  abolish  the  institutions 
of  property  and  marriage,  of  education  and  religion,  since  they  were  too 
derived  from  the  more  ancient  civilized  nation  of  the  world." 

See  Life  of  Alexander  J.  Dallas,  by  George  M.  Dallas  (1871). 

1  Henry  H.  Brackenridge,  then  Judge  of  the  Supreme  Court  of  Penn- 
sylvania, said  in  his  Law  Miscellanies  (1814),  that  this  act  ought  to  be  re- 
pealed, and  he  questioned  its  constitutionality,  "as  abridging  the  right  of 
the  judiciary  to  hear  all  reason  on  a  question  before  them." 


234  A  HISTORY  OF  THE  AMERICAN  BAR 

The  question  of  the  existence  of  a  national  Common 
Law  in  the  criminal  jurisdiction  of  the  Federal  courts  was 
finally  set  at  rest  by  the  decision,  in  1812,  in  the  case  of 
U.  S.  V.  Goodwin  (7  Cranch,  32),  argued  by  Attorney- 
General  Pinkney  for  the  Government,  Dana  of  Connecticut 
for  the  defendants  declining  to  argue.  Judge  Johnson  gave 
the  opinion,  holding  that  an  indictment  for  libel  on  the 
President  could  not  be  sustained  without  a  Federal  statute 
on  the  subject,  and  stating  that: 

"Although  this  question  is  brought  up  now  for  the  first 
time  to  be  decided  by  this  Court,  we  consider  it  as  having 
long  since  been  settled  in  public  opinion  —  the  general 
acquiescence  of  legal  men  shows  the  prevalence  of  opinion 
in  favor  of  the  negative  of  the  proposition.  .  .  .  All  exercise 
of  criminal  jurisdiction  in  Common  Law  cases  is  not  within 
their  implied  powers."^ 

Even  after  this  decision,  a  feeling  of  unrest  at  the  weight 
given  to  the  EngHsh  Common  Law  by  the  courts  cropped 
up  through  the  country;  and  an  excellent  description  of 
this  condition  was  given  by  Peter  S.  DuPonceau,  Provost 
of  the  Law  Academy  of  Philadelphia,  in  an  address  to  the 
students,  as  late  as  1824:  ^ 

*  See  U.  S.  V.  Coolidge,  i  Gallison  488,  in  1813,  in  which  Judge  Story 
attempted  to  make  a  distinction  between  power  to  indict  and  power  to  pun- 
ish. Judge  John  Davis  dissenting,  the  case  was  taken  to  the  Supreme 
Court  on  a  division  of  opinion;  but  the  Supreme  Court  refused  (i  Wheaton, 
415),  in  1816,  to  hear  an  argument  on  the  point. 

2  See  A  Dissertation  on  the  nature  and  extent  of  the  Jurisdiction  of  the 
Courts  of  the  United  States,  being  a  valedictory  address  to  the  students  of  the 
Law  Academy  of  Philadelphia,  April  23,  1824,  by  Peter  S.  DuPonceau, 
Provost  of  the  Academy. 

Tucker's  Blacks  tone,  Vol.  I,*-  App.  E;  Kent's  Commentaries,  Vol.  I, 
p.  311;  Rawle  on  the  Conslitjition,  Chap.  30;  North  American  Review,  July, 
1825;  Speech  of  Bayard,  in  Debates  on  the  Judiciary,  in  1802,  p.  372,  Story's 
Commentaries  on  the  Constitution,  Vol.  I,  s.  158. 

Federal  Common  Law — Virginia  Law  Register,  Vol.  X  (1904);  Whar- 
ton's Criminal  Law,  Vol.  I. 


PREJUDICES  AGAINST  LAW  AND  LAWYERS      235 

"Various  circumstances  have  concurred  after  the  Revo- 
lution to  create  doubts  in  the  public  mind  respecting  the 
operation  of  the  Common  Law  in  this  country  as  a  national 
system,  particularly  in  criminal  cases.  The  bitter  feeling 
of  animosity  against  England  which  the  Revolutionary  War 
produced  was  not  amongst  the  least  of  these  causes.  .  .  . 

"...  I  am  well  aware  that  this  doctrine  of  the  nation- 
ality of  the  Common  Law  will  meet  with  many  opponents. 
There  is  a  spirit  of  hostility  abroad  against  this  system 
which  cannot  escape  the  eye  of  the  most  superficial  ob- 
server. It  began  in  Virginia,  in  the  year  1799  or  1800,  in 
consequence  of  an  opposition  to  the  alien  and  sedition 
acts;  a  committee  of  the  legislative  body  made  a  report 
against  these  laws  which  was  accepted  by  the  House,  in 
which  it  was  broadly  laid  down  that  the  Common  Law  is  not 
the  law  of  the  United  States.  Not  long  afterwards,  the 
flame  caught  in  Pennsylvania;  and  it  was  for  a  time  be- 
lieved that  the  Legislature  would  aboUsh  the  Common 
Law  altogether.  Violent  pamphlets  were  pubHshed  to 
instigate  them  to  that  measure.  The  whole,  however, 
ended  in  a  law  for  determining  all  suits  by  arbitration 
in  the  first  instance,  at  the  will  of  either  party,  and  another 
prohibiting  the  reading  and  quoting  in  courts  of  justice  of 
British  authorities  of  a  date  posterior  to  the  Revolution.! 

"It  was  not  long  before  this  inimical  disposition  towards 
the  Common  Law  made  its  way  into  the  State  of  Ohio. 
In  the  year  18 19,  a  learned  and  elaborate  work  was  pub- 
lished in  that  State  -  in  which  it  was  endeavored  to  prove 
not  only  that  the  Common  Law  was  not  the  law  of  the 
United  States,  but  that  it  had  no  authority  in  any  of  the 
States  that  had  been  formed  out  of  the  old  Northwestern 
Territory.  But  few  copies  of  his  work  have  been  printed; 
nevertheless,  as  it  is  learnedly  and  elaborately  written,  it 
cannot  but  have  had  a  considerable  degree  of  influence.    In 

*  This  spirit  was  considerably  checked  by  a  well-written  pamphlet  pub- 
lished at  the  time  by  Joseph  Hopkinson,  Esq.,  of  Philadelphia,  in  which  he 
demonstrated  the  absurdity  of  the  project  of  abolishing  the  Common  Law. 

^  Historical  sketches  of  the  principl-es  and  maxims  of  American  Juris- 
prudence, in  contrast  with  the  doctrines  of  the  English  common  law  on  the  sub- 
ject of  crimes  and  punishments,  by  Milton  Goodnow  (Steubcnvale,  1S19). 


236  A  HISTORY  OF  THE  AISIERICAN  BAR 

other  States,  attacks  upon  the  Common  Law,  more  or 
less  direct,  have  appeared  from  time  to  time.  Its  faults 
are  laid  hold  of  and  exhibited  in  the  most  glaring  light; 
its  ancient  abuses,  its  uncertainty,  the  immense  number 
of  volumes  in  which  its  doctrines  are  to  be  sought  for,  .  .  . 
and  above  all  the  supposed  danger  to  our  institutions 
from  its  being  stiU  the  law  of  a  monarchical  country,  the 
opinions  of  whose  judges  long  habit  has  taught  us  to  re- 
spect, which  opinions  are  received  from  year  to  year  and 
admitted  in  our  courts  of  justice  if  not  as  rules,  at  least 
as  guides  for  their  decisions;  these  are  the  topics  which 
are  in  general  selected  for  animadversion." 

It  is  probable  that  no  one  thing  contributed  more  to 
enflame  the  pubhc  mind  against  the  Common  Law  than  did 
the  insistence  of  the  American  courts  on  enforcing  the 
harsh  doctrines  of  the  English  law  of  criminal  libel  —  that 
truth  was  no  defence,  and  that  the  jury  could  pass  only  on 
the  fact  of  publication  and  the  application  of  the  innuendo. 

In  Colonial  times,  there  had  been  a  long  struggle  between 
the  Royal  judges  and  the  writers  and  printers  for  a  wider 
freedom  of  the  press;  and  trial  after  trial  had  been  held, 
in  which  counsel  had  argued  for  the  greater  rights  of  the 
jury  —  notably  William  Bradford's  Case,  in  Pennsylvania, 
in  1692;  Thomas  Maulers,  in  Massachusetts,  in  1695; 
John  Chesley's,  in  Massachusetts,  in  1724  (in  which  the 
great  John  Read  defended  the  printer);  and  John  Peter 
Zenger's,  in  New  York,  in  1735  (in  which  Andrew  Hamilton 
of  Pennsylvania  made  one  of  the  most  famous  arguments 
in  American  history).  The  narrow  EngUsh  doctrines  had, 
however,    prevailed    until    the    Revolution.^    When    the 

^  See  elaborate  historical  opinion  in  Commonwealth  v.  Whitmarsh, 
Thacher's  Criminal  Cases,  p.  441  (1836);  also  interesting  account  of  early- 
cases  in  Freedom  of  the  Press  in  Massachusetts,  by  C.  A.  Dunniway  (1906). 

The  defence  of  truth  was  however  allowed  in  an  early  Pennsylvania  case, 
see  Proprietor  v.  George  M.  Keith  et  al.,  in  1692,  referred  to  in  Constitutional 
Provisions  guaranteeing  Freedom  of  the  Press  in  Pennsylvania  —  Amer.  Law 
Register,  Vol.  XLIII. 


PREJUDICES  AGAINST  LAW  AND  LAWYERS      237 

State  Constitutions  were  being  formed,  the  greatest  care 
had  been  taken  to  insert  ample  clauses,  guaranteeing  free- 
dom of  speech  and  freedom  of  the  press;  and  it  was  sup- 
posed that  under  these  clauses  the  old  law  of  libel  could  no 
longer  flourish.  It  was  a  great  shock,  therefore,  to  the  pub- 
lic, as  well  as  to  many  members  of  the  Bar,  when  Chief 
Justice  Francis  Dana  held  in  the  first  case  arising  under 
the  new  Massachusetts  Constitution,  in  1791,  —  Com.  v. 
Freeman  —  that  the  old  Common  Law  of  criminal  Hbel  had 
not  been  altered,  and  that  with  all  its  rigors  it  was  still  in 
force  in  that  State.  This  decision  excited  much  interest 
throughout  the  country.  The  obnoxious  principle  of  the 
English  law  that  truth  was  no  defence  was  again  applied 
in  1801,  in  the  trial  of  another  newspaper  editor,  Abijah 
Adams,  the  ardent  Anti-Federalist  publisher  of  the  Boston 
Independent  Chronicle  —  Chief  Justice  Dana,  in  his  decision, 
terming  the  Common  Law,  "our  cherished  birthright."^ 
The  irony  of  this  term,  as  voicing  the  real  public  sentiment, 
may  be  seen  from  an  editorial  printed  in  his  paper  on  the 
day  after  Adams'  release  from  prison:  ''Yesterday  ]\Ir. 
Abijah  Adams  was  discharged  from  his  imprisonment, 
after  partaking  of  our  adequate  proportion  of  his  birth- 
right by  a  confinement  of  thirty  days  under  the  operation 
of  the  Common  Law  of  England."  Another  editor,  John 
S.  Lillie,  of  the  Constitutional  Telegraph,  in  Boston,  was 
indicted,  in  1801,  for  libel  in  referring  to  Dana  as  "the 
Lord  Chief  Justice  of  England,"  "a  tyrant  judge,"  who 
administered  "that  execrable  engine  of  tyrants  the  Com- 
mon Law  of  England  in  criminal  prosecutions." 

Similar  trials  for  libel  were  held  throughout  the  United 
States  during  the  era  of  Adams  and  Jefi'erson;    and  the 

1  See  elaborate  review  of  this  trial  and  the  principles  involved,  by  George 
Blake,  attorney  for  the  defendant,  in  the  Independent  Chronicle,  April  S-29, 
iSoi. 


238  A  fflSTORY  OF  THE  AMERICAN  BAR 

decisions  of  the  courts  based  on  the  Enghsh  law  became 
increasingly  obnoxious  to  the  public.  Though,  as  Chief 
Justice  Thomas  McKean  of  Pennsylvania  said,  "  libelling 
had  become  a  kind  of  national  crime,"  and  though  there 
seemed  to  be,  at  this  time,  no  Hmit  to  the  license  in  which 
political  writers  and  speakers  indulged,  yet  the  people  at 
large  were  not  of  a  temper  to  have  this  license  stopped  by 
judicial  decision.  The  judges  were  running  counter  to  the 
spirit  of  the  times.  Ever)rwhere,  there  was  the  demand  that 
at  least  truth  must  be  admitted  as  a  defence,  and  that 
the  Enghsh  law  must  be  discarded.  Profound  effect  was 
produced  by  two  pamphlets  On  the  Liberty  of  the  Press, 
issued  in  1799  and  1803  by  George  Hay,  an  eminent  law- 
yer of  Virginia,  in  which  he  took  the  broad  ground  that 
every  individual  should  have  freedom  to  write  or  speak 
the  truth  about  any  other  individual,  provided  no  actual 
injury  was  intended  or  produced. 

Finally,  in  1804,  Alexander  Hamilton  made  the  greatest 
forensic  argmnent  of  his  Hfe,  in  vigorous  opposition  to  the 
English  doctrine  of  libel,  in  People  v.  Croswell  (3  Johnson, 
337)  in  which  he  laid  down  the  principle  that  "the  Uberty 
of  the  press  consists  in  the  right  to  pubUsh  with  impunity 
truth  with  good  motives  and  for  justifiable  ends,  whether 
it  respects  government,  magistracy  or  individuals."  The 
court  and  Chief  Justice  Kent  adopted  this  to  the  extent  of 
allowing  truth  to  be  pubHshed  regarding  pubUc  officers,  if 
without  malice.  And  so  great  was  the  impression  made 
on  the  public  that  the  New  York  Legislature,  at  its 
next  session,  in  1805,  passed  a  declaratory  act  on  the 
subject. 

Three  years  later,  the  Massachusetts  Supreme  Court,  by 
Chief  Justice  Parsons,  took  the  first  step  towards  breaking 
down  the  old  law,  in  Com.  v.  Clap  (4  Mass.  163),  by  prac- 
tically adopting  Hamilton's  doctrine  so  far  as  it  related  to 


PREJUDICES  AGAINST  LAW  AND  LAWYERS      239 

candidates  for  office  and  public  officers.'  Even  this  was 
only  a  partial  step;  the  American  law  had  not  yet  been 
brought  into  conformity  with  public  opinion;  and  it  was 
not  until  the  decade  from  1820  to  1830  that  the  States,  by 
legislation  largely,  finally  freed  themselves  from  the  bonds 
of  the  English  law  of  libel. 

The  revolt  against  the  Common  Law  in  this  one  branch 
is  merely  an  illustration  of  the  general  dissatisfaction  of 
the  American  people  and  of  their  determination  that  their 
law  should  be  progressive. 

'  See  on  this  general  subject  two  spicy  pamphlets  in  1823,  ^  Letter  toJosiah 
Quincy  by  a  Member  of  the  Sujjolk  Bar,  by  H.  G.  Otis;  Reflections  on  the  Law 
oj  Libel,  addressed  to  a  Member  of  the  Suffolk  Bar,  by  Edmund  Kimball. 
See  also  Com.  v.  Buckingham,  Thacher's  Criminal  Cases;  and  Freedom  of 
the  Press  in  Massachusetts,  by  C.  A.  Dunniway  (1906). 


CHAPTER  XI 

THE   FEDERAL   BAR  AND   LAW,   1789-1815 

With  the  year  1789,  American  law  as  a  national  system 
began;  and  its  early  history  falls,  naturally,  into  two 
periods,  the  one  closing  in  1801,  with  the  appointment  of 
Chief  Justice  Marshall,  the  other  with  the  end  of  the  War 
of  1812,  in  1815. 

By  far  the  most  important  work  which  greeted  the  first 
Congress  when  it  met  in  1789,  was  the  establishment 
of  a  judicial  system  for  the  country.  The  honor  of  draft- 
ing the  famous  statute  known  as  the  Judiciary  Act  — 
one  of  the  most  remarkable  and  impregnable  pieces  of 
legislation  ever  framed  — must  be  attributed  chiefly  to 
OUver  Ellsworth. 

On  April  7,  1789,  the  new  Senate  appointed  Oliver  Ells- 
worth of  Connecticut,  William  Paterson  of  New  Jersey, 
William  Maclay  of  Pennsylvania,  Caleb  Strong  of  Massa- 
chusetts, Richard  Henry  Lee  of  Virginia,  Richard  Bassett 
of  Delaware,  William  Few  of  Georgia  and  Paine  Wingate 
of  New  Hampshire,  "a  committee  to  bring  in  a  bill  for  or- 
ganizing the  judiciary  of  the  United  States."  On  June  12, 
the  Committee,  through  Mr.  Lee,  reported  a  bill  which 
was  passed,  July  17,  by  vote  of  fourteen  to  six,  three  of 
the  Committee  —  Lee,  Maclay  and  Bassett  —  opposing  it. 
In  the  House  of  Representatives,  there  was  bitter  opposi- 
tion led  by  Livermore  of  New  Hampshire,  to  that  part  of 
the  bill  establishing  the  inferior  courts.     It  was  argued 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         241 

that  a  disastrous  conflict  of  jurisdiction  with  the  State 
courts  would  inevitably  result;  that  the  Federal  courts 
would  eventually  ** swallow  up  the  State  courts;"  that  the 
expense  would  be  great;  and,  finally,  that  such  Federal 
courts  were  entirely  unnecessary,  as  the  jurisdiction  could 
as  well  be  conferred  on  the  various  State  courts  with  an 
appeal  or  writ  of  error  in  Federal  cases  to  the  United  States 
Supreme  Court.^ 

The  bill  was  defended  by  Sedgwick,  Ames  and  Gerry 
of  Massachusetts,  Benson  of  New  York  and  Madison  of 
Virginia;  and  after  an  amendment  striking  out  the  Circuit 
and  District  Courts  had  been  rejected  by  a  vote  of  thirty- 
one  to  eleven,  the  bill  was  passed. 

Approved  by  the  President,  September  24,  1789,  the 
Act  provided  for  a  Supreme  Court  with  a  Chief  Justice  and 
five  Associate  Justices;  for  thirteen  District  Courts,  one  for 
each  State,  and  also  for  the  Districts  of  Maine  and  Ken- 
tucky (not  then  States) ;  and  for  a  division  of  the  country 
into  three  Circuits  —  the  Eastern,  the  Middle,  and  the 
Southern,  and  for  a  Circuit  Court  for  each,  consisting  of 
two  Justices  of  the  Supreme  Court  and  the  District  Judge 
of  the  District  where  the  Court  was  held.^ 

It  is  interesting  to  note  that,  though  now  regarded  as 
a  particulariy  wise  and  far-sighted  measure,  the  Judiciary 
Act  received  bitter  criticism  in  those  early  years.  Thus, 
the  great  North  Carolina  lawyer,  WilHam  R.  Da\ie,  wrote 
to  Judge  James  Iredell,  August  2,  1791: 

"I  sincerely  hope  something  will  be  done  at  the  next 
session  of  Congress  with  the  Judiciary  Act;  it  is  so  defec- 
tive in  point  of  arrangement,  and  so  obscurely  drawn  or 
expressed  that,  in  my  opinion,  it  would  disgrace  the  com- 

'  See  The  New  Court  Bill  —  American  Law  Review,  Vol.  X  (1876). 
2  By  the  Act  of  1792-1793,  c.  22,  the  requirement  that  two  Supreme  Court 
judges  must  be  present,  was  repealed. 


242  A  HISTORY  OF  THE  AMERICAN  BAR 

position  of  the  meanest  Legislature  of  the  States.  The 
Attorney-General's  Report  is  a  type  of  it  —  an  elegant 
piece  of  unmeaning  obscurity." 

And  Samuel  Dexter,  in  his  argument  in  1816,  in  Martin 
V.  Hunter's  Lessee  (i  Wheat,  p.  305)  said: 

"That  great  man,  and  those  who  advised  him  improvi- 
dently,  assented  to  a  law  [the  Judiciary  Act]  which  is 
neither  constitutionally  nor  politically  adapted  to  enforce 
the  power  of  the  National  Courts  in  an  amicable  and 
pacific  manner." 

On  the  day  on  which  he  signed  the  Act,  September  24, 
1789,  President  Wasliington  sent  to  the  Senate,  as  his 
nominees  for  the  first  United  States  Supreme  Court,  the 
names  of  John  Jay  of  New  York,  as  Chief  Justice,  and  as 
Associate  Justices,  John  Rutledge  of  South  Carolina,  James 
Wilson  of  Pennsylvania,  William  Cushing  of  Massachu- 
setts (then  Chief  Justice  of  that  State),  Robert  H.  Harri- 
son of  Maryland  and  John  Blair  of  Virginia.  Harrison 
decHning,  in  order  to  accept  the  position  of  Chancellor  of 
]Maryland,  James  Iredell  of  North  Carolina  took  his  place. 

The  Court  was  opened  in  New  York,  February  2,  1790; 
and  the  next  day  three  lawyers  were  admitted  to  practise 
before  it  as  counsellors,  EHas  Boudinot  of  New  Jersey, 
Thomas  Hartley  of  Pennsylvania  and  Richard  Harrison 
of  New  York.  By  rule  of  court  (amended  in  1801)  an 
attorney  or  counsellor  who  had  practised  as  such  in  the 
Supreme  Court  of  any  State  for  three  years,  might  be  ad- 
mitted to  its  Bar  but  he  was  required  to  make  his  election 
between  the  two  degrees,  and  could  not  practise  both 
as  counsellor  and  as  attorney. 

It  is  interesting  to  note  that  in  at  least  one  of  the  United 
States  Circuit  Courts  (the  First),  rules  of  court  provided 
for  four  degrees  at  the  Bar  —  attorneys,  counsellors, 
barristers  and  sergeants.    The  latter  degree  was  a  distinct 


THE  FEDER/VL  BAR  AND  LAW,  1789-1815         243 

innovation  in  the  United  States,  existing  hitherto  only 
in  the  Colony  and  State  of  New  Jersey.  To  qualify  as  an 
attorney  in  the  Circuit  Court,  an  applicant  must  have 
been  either  a  college  graduate  who  had  studied  law  in  the 
ofl&ce  of  an  attorney  or  counsellor  of  the  Court  for  three 
years  (four  years  if  a  non-graduate),  or  admitted  to  prac- 
tise in  the  State  court  for  one  year.  After  two  years' 
practise  in  the  Circuit  Court  as  attorney,  he  was  eligible 
for  admittance  as  counsellor.  Counsellors  "of  six  years' 
standing  in  practise"  might  be  "called  by  the  court  to 
the  degree  of  Barrister,  and  after  ten  years'  standing  in 
practise  to  the  degree  of  Sergeant  at  Law." 

The  conferring  of  these  latter  degrees  was  of  rare  occur- 
rence, the  most  notable  instance  being  the  order  made  by 
Judge  Story  in  181 2,  as  follows: 

"Whereas  the  court  have  a  full  knowledge  of  the  learning, 
integrity  and  ability  of  the  Hon.  Jeremiah  Smith  and  the 
Hon.  Jeremiah  Mason  and  upon  the  most  entire  confidence 
therein  and  being  willing  to  express  this  opinion  in  the 
most  public  manner  as  well  as  a  testimony  to  their  merits 
as  also  a  laudable  example  to  the  junior  members  of  the 
Bar;  and  the  court  having  taken  the  premises  into  their 
mature  deUberation  of  their  own  mere  motion  and  pleasure, 
have  ordered  and  do  hereby  order  that  the  honorable  de- 
gree of  sergeant-at-law  be  and  hereby  is  conferred  upon 
them.  .  .  . 

"The  court  on  mature  deliberation  do  order  that  the 
degree  of  barrister  at  law  be  and  hereby  is  conferred  on 
the  following  gentlemen  —  Oliver  Peabody,  Daniel  Humph- 
reys, George  Sullivan  and  Daniel  Webster,  Esquires,  in 
testimony  of  the  entire  respect  the  court  entertains  for 
their  learning,  integrity  and  ability." 

There  being  no  business  ready  before  the  Supreme  Court, 
its  Judges  entered  at  once  upon  their  duties  in  the  inferior 
courts,  the  first  Circuit  Court  being  held  in  the  Eastern 


244  A  HISTORY  OF  THE  AMERICAN  BAR 

Circuit,  in  New  York,  April  4,  1790,  by  Chief  Jutsice  Jay, 
Judge  Cushing  and  District  Judge  Duane. 

A  contemporary  account  of  the  opening  of  the  Circuit 
Court  at  New  Haven,  April  22,  1790,  is  given  by  President 
Stiles  as  follows:^ 

"The  federal  circuit  Supreme  Court  of  the  United  States 
sat  here  for  the  first  time  since  its  institution  by  Congress. 
Present,  3  Judges,  Hon.  Ch.  Just.  Jay,  late  Ambassador 
to  France,  Judge  Cushing,  and  Judge  Law.  The  Ch. 
Justice  sent  the  Marshall  to  me  this  morning  to  open  the 
court  with  Prayer;  but  I  was  unable  to  go  abroad  and 
Dr.  Dana  prayed  with  the  court.  Then  Mr.  Jay  made  a 
speech  to  the  Grand  Jury:  all  the  Attornies  of  two 
years'  standing  present  were  then  admitted  and  Sworn 
Barristers,  Attorneys  and  Counsellors  of  the  Supreme 
Court." 

As  there  continued  to  be  few  cases  for  the  Supreme  Court, 
only  five  being  heard  up  to  the  February  Term  of  1793, 
the  Circuit  Court  work  remained  for  some  time  the  chief 
occupation  of  the  Judges  —  a  very  arduous  work  in  those 
days,  owing  to  the  difficulties  of  interstate  communication 
—  "the  life  of  a  postboy"  —  so  Iredell  described  it.^  At 
first,  the  Judges  were  divided  into  pairs,  and  each  assigned 
to  one  circuit  permanently.  As  the  Southern  Circuit  in- 
volved a  journey  of  at  least  1,900  miles  from  Philadelphia 

1  Literary  Diary  of  Ezra  Stiles,  Vol.  III. 

2  After  the  Circuits  were  annually  changed,  Judge  Cushing's  travels  on 
Circuit  are  thus  described: 

"He  travelled  over  the  whole  Union,  holding  courts  in  Virginia,  the 
Carolinas  and  Georgia.  His  travelling  equipage  was  a  four-wheeled  phae- 
ton, drawn  by  a  pair  of  horses  which  he  drove.  It  was  remarkable  for  its 
many  ingenious  arrangements  (all  of  his  contrivance),  for  carrying  books, 
choice  groceries  and  other  comforts.  Mrs.  Cushing  always  accompanied 
him,  and  generally  read  aloud  while  riding.  His  faithful  servant,  Prince,  a 
jet-black  negro,  whose  parents  had  been  slaves  in  the  family,  and  who  loved 
his  master  with  unbounded  affection,  followed." 

Lives  of  the  Chief  Justices,  by  Henry  Flanders. 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         245 

and  return,  to  be  covered  twice  a  year,  it  is  no  wonder  that 
Iredell,  to  whom  it  was  assigned,  should  write  to  Jay, 
February  11,  1791,  "I  will  venture  to  say,  no  Judge  can 
conscientiously  undertake  to  ride  the  Southern  Circuit  con- 
stantly and  perform  the  other  parts  of  his  duty,"  —  nor 
that  Jay  should  reply,  March  16,  1791,  "The  Circuits 
press  hard  upon  us  all;  and  your  share  of  the  task  has 
hitherto  been  more  than  in  due  proportion."  Later  the 
Circuits  were  changed  annually,  the  Judges  taking  them 
in  turn. 

As  the  Supreme  Court  sat  in  the  City  Hall  in  Philadel- 
phia from  1 79 1  to  1 80 1,  the  chief  practitioners  appearing 
before  it  were  naturally  members  of  the  Philadelphia  Bar, 
then  the  ablest  lawyers  in  the  country.  There  were,  in 
1785,  in  Philadelphia,  thirty-four  counsellors  at  law,  of 
whom  William  Lewis,  the  "Senior  of  the  Bar,"  ^  Edward 
Tilghman,-  William  Rawle,^  Jared  IngersolH  and  Alex- 
ander J.  Dallas^  argued  most  of  the  cases  in  the  Federal 
Court.    Other  leading  men  of  that  Bar  at  this  time  were 

^  Born  in  1748  and  studied  law  in  the  offices  of  Nicholas  Wain  and  George 
Ross;  was  admitted  to  the  Bar  in  1776,  and  became  the  great  criminal 
lawyer  of  his  day.  He  was  the  fearless  counsel  for  John  Fries  in  the  case 
which  led  to  the  impeachment  in  1805  of  Judge  Chase,  of  the  United  States 
Supreme  Court. 

2  A  grandson  of  Tench  Francis,  bom  in  Maryland  in  1750,  studied 
in  the  Middle  Temple,  and  was  admitted  to  the  Bar  in  1774.  He  was  the 
consummate  Pennsylvania  authority  on  all  points  connected  with  estates, 
tenures,  uses  and  remainders. 

'  Bom  in  1759,  studied  law  with  Kemp  in  New  York,  and  in  the  Middle 
Temple  in  1781,  and  became  United  States  District  Attorney  in  1791,  being 
prosecutor  in  the  whiskey  Insurrection  and  in  the  famous  John  Fries  case. 
"Between  1793  and  1813  his  practice  was  as  large  as  any  lawyer  at  the 
bar." 

*  Born  in  1749  in  Connecticut,  graduated  at  Yale  in  1766,  and  educated 
in  the  Middle  Temple,  1774-1778;  admitted  to  the  Bar  in  1779. 

'  Born  in  Jamaica  in  1759,  studied  in  the  Temple,  and  was  admitted 
to  the  Bar  in  Philadelphia  in  1785.  He  published  the  first  volume  of 
Dallas'  Reports,  in  1790. 


246  A  HISTORY  OF  THE  AMERICAN  B.\R 

William  Tilghman/  William  Bradford,^  Jasper  Yeates/ 
and  Richard  Peters.^ 

The  Virginia  Bar  presented  three  lawyers  of  pre-eminent 
ability:  John  Marshall,  who  was  born  in  1755,  attended 
the  law  lectures  of  Chancellor  Wythe  at  William  and  Mary 
College  in  1779,  and  was  admitted  to  the  Bar  in  1780; 
Edmund  Randolph,  who  was  born  in  1753,  and  was  con- 
sidered the  head  of  the  Southern  Bar;  and  Charles  Lee, 
who  was  born  in  1758,  and  became  United  States  Attorney- 
General  in  1795. 

Few  lawyers  appeared  from  other  States  —  the  chief 
ones  being  Samuel  Dexter,  from  Massachusetts;  James 
Reed  and  John  Julian  Pringle,^  from  South  CaroHna; 
Jeremiah  B.  Howell,^  and  Ashur  Robbins,^  from  Rhode 
Island;  James  Hillhouse,^  from  Connecticut;  Josiah 
Ogden  Hoffman,  from  New  York;  John  Thompson 
Mason,^  from  Maryland;  and  James  A.  Bayard,^°  from 
Delaware. 

Such  was  the  early  Supreme  Court  Bar, 

1  Bom  in  1756,  studied  law  with  Kemp  in  New  York,  admitted  to  prac- 
tise in  1783,  and  became  Chief  Justice  of  the  State  in  1806.  He  was  a 
master  of  Equity  Jurisprudence. 

2  Born  in  1755,  a  Princeton  graduate  in  1772,  was  judge  of  the  Penn- 
sylvania Supreme  Court  in  1791  and  the  second  Attorney-General  of  the 
United  States,  succeeding  Edmund  Randolph,  of  Virginia,  in  1794. 

3  Bom  in  1745,  graduate  in  1761  of  the  College  of  Philadelphia,  a  student 
in  the  Temple,  Judge  of  the  Supreme  Court  in  1791. 

*  Bom  in  1744,  graduate  of  College  of  Philadelphia  in  176 1,  United  States 
District  Judge  1792. 

^  Bom  in  1753,  College  of  Philadelphia,  1771. 

6  Bom  in  1772,  Brown  1789,  United  States  Senator  1811-1817. 

^  Bom  in  1757,  Yale  1782,  United  States  District  Attorney  1795,  United 
States  Senator  1825-1839. 

8  Bora  in  1754,  Yale  1773,  United  States  Senator  1795-1810. 

^  Born  in  1764,  offered  the  position  of  United  States  Attorney-General 
by  President  Jefferson  and  by  President  Madison,  but  declined. 

1"  Born  in  1767,  Princeton  1784,  studied  with  Jared  Ingersoll  and  Joseph 
Reed,  United  States  Senator  1805-1813. 


THE  FEDER.\L  BAR  AND  LAW,   1 789-181 5  247 

"During  this  period,"  says  Kent,  "the  Federal  Courts 
were  chiefly  occupied  with  questions  concerning  their  admi- 
ralty jurisdiction,  and  with  political  and  national  questions 
arising  out  of  the  Revolutionary  War,  and  the  dangerous 
influence  and  action  of  the  war  of  the  French  Revolution 
upon  the  neutrality  and  peace  of  our  country  —  the  prin- 
ciples of  expatriation,  of  ex  post  facto  laws,  of  constitutional 
taxes." 

The  first  case  on  the  docket  of  the  Supreme  Court  was 
Vanstophorst  v.  The  State  of  MarylaM  m  the  August  term 
of  1791;  but  it  was  never  argued. 

During  these  first  eleven  years,  the  Court  decided  only 
fifty-five  cases;  but  two  of  these,  however,  were  of  highest 
importance.  The  first,  —  Chisholm  v.  Georgia  (2  Dallas, 
419),  —  in  1793,  in  which  the  Court  upheld  the  right  of 
an  individual  to  sue  a  State,  emphasized  the  sovereignty 
of  the  new  United  States  over  one  of  its  members,  but  at 
the  same  time  nearly  caused  a  disruption  of  the  young 
Nation  —  owing  to  the  outburst  of  resentment  at  the 
decision,  coming  from  those  who  had  opposed  the  Con- 
stitution as  an  infringement  on  States'  Rights.  It  was 
argued  by  Edmund  Randolph  for  the  plaintiff,  and  a  re- 
monstrance was  filed  by  Jared  Ingersoll  and  Alexander  J. 
Dallas  of  Pennsylvania  for  the  State  of  Georgia,  which 
declined  to  formally  appear.^  The  other  —  Ware  v. 
Eylton  (3  Dallas,  199),  the  famous  British  Debts  case  — 
in  1796,  involved  a  question  of  immense  pecuniary  im- 
portance; namely,  whether  the  State  laws,  confiscating 
and  sequestrating  debts  due  to  a  hostile  enemy,  or  allow- 
ing their  pa>Tnent  in  depreciated  money,  were  valid  against 
the  provisions  of  the  Treaty  with  England.     In  Virginia 

^  See  Life  of  Patrick  Henry,  by  William  Wirt  (181S);  Georgia  as  a  Lili- 
gani  —  Georgia  Bar  Ass.  Proc,  Vol.  XIII;  Letters  and  Times  of  the  Tylers,  by 
Lyon  G.  Tyler. 


248  A  HISTORY  OF  THE  AMERICAN  BAR 

alone,  it  is  estimated  that  there  were  more  than  $2,000,000 
of  such  debts:  and  on  the  decision  of  this  case  hung  the 
fortunes  of  thousands  of  American  citizens.  The  question 
had  been  originally  argued,  in  1791,  in  Jones  v.  Walker 
(2  Paine,  688),  in  the  Federal  Circuit  Court  in  Virginia, 
before  Judges  Johnson  and  Blair  of  the  Supreme  Court, 
and  District  Judge  GrijBEin,  and  again,  in  1793,  before 
Chief  Justice  Jay  and  Judge  Iredell  —  Ronald,  Baker, 
Starke  and  John  Wickham,  of  the  Virginia  Bar  appearing 
for  the  British  creditors,  and  Patrick  Henry,  Alexander 
Campbell,  and  Attorney-General  Innis  of  Virginia,  for  the 
debtors.    Of  these  counsel.  Judge  Iredell  in  his  opinion,  said : 

"The  cause  has  been  spoken  to  at  the  Bar,  with  a  degree 
of  ability  equal  to  any  occasion.  However  painfully  I 
may  reflect  at  any  time  on  the  inadequacy  of  my  own 
talents,  I  shall,  as  long  as  I  live,  remember  with  pleasure 
and  respect,  the  arguments  which  I  have  heard  in  this 
case.  They  have  discovered  an  ingenuity,  a  depth  of  in- 
vestigation, and  a  power  of  reasoning,  fully  equal  to  any- 
thing I  have  ever  witnessed,  and  some  of  them  have  been 
adorned  with  a  splendor  of  eloquence  surpassing  what  I 
have  ever  felt  before.  Fatigue  has  given  way  under  its 
influence  and  the  heart  has  warmed,  while  the  under- 
standing has  been  instructed." 

In  the  Supreme  Court,  the  case  was  argued  by  Edward 
Tilghman  and  WilHam  Lewis,  of  Philadelphia  for  the 
creditors,  and  John  Marshall  and  Campbell  for  the  debtors, 
the  latter  losing  their  case,  and  the  Court  holding  a  treaty 
to  be  supreme  over  State  law. 

Of  Marshall's  argument  —  his  only  one  in  the  Supreme 
Court  —  William  Wirt  who  was  present  wrote:  ^ 

"Marshall  spoke,  as  he  always  does,  to  the  judgment 
merely,  and  for  the  simple  purpose  of  convincing.    Mar- 

'  See  letter  of  W.  Wirt  to  Gilmer,  November  2,  1828,  in  Memoir  of  the 
Lije  of  William  Wirt,  by  John  P.  Kennedy  (1849). 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         249 

shall  was  justly  pronounced  one  of  the  greatest  men  of 
the  country.  He  was  followed  by  crowds,  looked  upon  and 
courted  with  every  evidence  of  admiration  and  respect 
for  the  great  powers  of  his  mind.  Campbell  was  neg- 
lected and  slighted,  and  came  home  in  disgust.  Marshall's 
maxim  seems  always  to  have  been,  'aim  exclusively  at 
strength.'  " 

Two  other  cases  in  the  Supreme  Court  during  this  period 
deserve  mention.  One,  Hylton  v.  United  States  (3  Dallas, 
171),  in  1796,  which  decided  the  meaning  of  the  term 
"direct  tax"  in  the  Constitution,  is  noteworthy  as  being 
the  only  case  ever  argued  before  the  United  States  Supreme 
Court  by  Alexander  Hamilton.  Associated  with  Hamilton 
was  Charles  Lee,  United  States  Attorney-General,  and 
opposed  to  him  were  Alexander  Campbell,  United  States 
District-Attorney  for  Virginia,  and  Jared  Ingersoll,  At- 
torney-General of  Pennsylvania.^ 

Of  Hamilton's  argument,  Judge  Iredell  wrote,  February 
26,  1796:^ 

"The  day  before  yesterday  Mr.  Hamilton  spoke  in  our 
court  attended  by  the  most  crowded  audience  I  ever  saw 
there,  both  Houses  of  Congress  being  almost  deserted  on 
the  occasion.  Though  he  was  in  very  ill  health  he  spoke 
with  astonishing  ability,  and  in  a  most  pleasing  manner, 
and  was  listened  to  with  the  profoundest  attention.  His 
speech  lasted  about  three  hours." 

A  contemporary  newspaper  account  stated:  ^ 

"The  whole  of  his  argument  was  clear,  impressive,  and 
classical.     The  audience  which  was  very  numerous   and 

*  In  Springer  v.  U.  S.,  102  U.  S.  586  (1881),  Chief  Justice  Chase  said  of 
the  Hylton  case:  "It  was  one  of  great  expectation,  and  a  general  interest 
was  felt  in  its  determination;  "  see  also  the  history  of  the  case  given  in 
Chase's  opinion. 

2  Life  and  Letters  of  James  Iredell,  by  GrifBth  J.  McRee,  Vol.  II  (1857). 

'  Works  of  Alexander  Hamilton,  by  Henry  Cabot  Lodge,  \'ol.  VII. 


2 so  A  HISTORY  OF  THE  AMERICAN  BAR 

among  whom  were  many  foreigners  of  distinction  and  many 
of  the  members  of  Congress,  testified  the  effect  produced 
by  the  talents  of  this  great  orator  and  statesman." 

Another  case  —  Georgia  v.  Brailsford  (3  Dallas,  i),  in 
1792,  argued  by  Jared  Ingersoll  and  Alexander  J.  Dallas, 
against  William  Bradford,  Edward  Tilghman  and  William 
Lewis  is  of  interest  as  one  of  the  very  few  cases  in  which 
a  special  trial  by  jury  has  ever  been  had  in  the  United 
States  Supreme  Court. 

In  these  eleven  years,  the  Court  suffered  many  changes. 
In  1 791,  Rutledge  resigned  to  become  Chancellor  of  South 
Carolina.^  In  1795,  Jay  resigned,  as  Chief  Justice,  to 
become  Governor  of  New  York.  Ellsworth,  who  was  ap- 
pointed Chief  Justice,  in  1796,  resigned  in  1800  because  of 
ill  health.2 

1  Rutledge  was  appointed  Chief  Justice  on  Jay's  resignation,  and  pre- 
'  sided  over  the  Court  during  the  August  Term  of  1795;   but  the  Senate  re- 
jected his  nomination. 

William  Cushing  was  appointed,  but  declined. 

2  Ellsworth,  during  his  term  as  Chief  Justice,  served  as  Envoy  Extraor- 
dinary and  Minister  Plenipotentiary  to  France,  1 799-1 800.  At  this  time,  he 
visited  England,  and  was  present  at  the  trial  of  the  famous  case  of  Rex  v. 
Waddington,  i  East,  in  which  Mr.  Law  (Lord  Ellenborough),  Mr.  Erskine, 
Mr.  Garrow  and  Mr.  Scott  (Lord  Eldon)  were  counsel.  Wharton  in  his  notes 
to  American  Slate  Trials  thus  describes  the  scene  in  Westminster  Hall: 

"Notwithstanding  Mr.  Jay's  previous  appearance  at  the  Court  of  St. 
James,  and  the  contemporaneous  appearance  there  of  Mr.  Rufus  King,  the 
fame  of  their  accomplishments  had  not  reached  the  King's  Bench,  whose 
precincts  they  had  probably  never  invaded;  and  it  was  consequently  with 
great  curiosity  that  the  elder  lawyers,  whose  notions  of  America  had  been 
derived  from  the  kidnapping  cases  which  were  the  only  precipitate  cast  on 
the  reports  of  the  Pri\y  Council  by  the  current  of  Colonial  litigation,  spied 
cut  the  American  Chief  Justice.  Mr.  Ellsworth's  simple  but  dignified  car- 
riage was  in  happy  contrast  to  the  awkwardness  of  the  English  Chief  Jus- 
tice (Kenyon);  and  as  soon  as  it  was  discovered  that,  though  his  worn  and 
marked  features  bore  a  stamp  which  had  not  then  become  familiar  to  the 
Enghsh  eye,  he  was  neither  an  Indian  nor  a  Jacobin  ...  he  was  surrounded 
by  a  knot  of  lawyers,  curious  to  know  how  the  Common  Law  stood  trans- 
planting." 


THE  FEDER.\L  BAR  AND  LAW,   1789-1S15  251 

Wilson  died  in  1798  and  Iredell  in  1799.  Samuel  Chase, 
of  Maryland,  became  a  Justice,  in  1796,  in  place  of  John 
Blair  (resigned),  and  William  Patcrson,  of  New  Jersey, 
became  a  Justice,  in  1793,  in  place  of  Thomas  Johnson, 
who  took  Rutledge's  place,  in  1791;  Alfred  Moore,  of 
North  Carolina,  became  a  Justice,  in  1799;  and  Bushrod 
Washington,  of  Virginia,  in  1798. 

As  late  as  1800,  Jay,  in  declining  re-appointment,  stated 
in  a  letter  to  President  Adams  that  he 

"left  the  bench,  perfectly  convinced  that  under  a  system 
so  defective,  it  would  not  obtain  the  energy,  weight  and 
dignity,  which  were  essential  to  its  affording  due  support 
to  the  National  Government;  nor  acquire  the  public  con- 
fidence and  respect  which,  as  the  last  resort  of  the  justice 
of  the  Nation,  it  should  possess." 

And  the  dijSicult  situation  in  which  the  Court  was  placed 
in  these  early  years  was  well  depicted  by  Caleb  Cusliing, 
writing  in  1824:  ^ 

"To  say  that  the  Supreme  Court  of  the  United  States 
was  forced  to  contend  with  all  the  prejudices  and  miscon- 
ceptions which  cast  a  cloud  around  the  dawning  of  our 
national  Constitution  is  far  short  of  the  reaUty;  for  its 
duties  brought  it  directly  in  conflict  wath  those  prejudices 
and  misconceptions  in  their  worst  and  most  aggravated 
shapes.  As  entrusted  with  the  execution  of  the  laws  it 
was  necessarily  thrust  forward  to  bear  the  brunt,  in  the 
first  instance,  of  all  the  opposition  levelled  against  the 
federal  head;  to  enforce  the  collection  of  revenue;  to  pun- 
ish riots  which  the  pressure  of  odious  taxes  had  excited; 
to  quell  disaffections  maddened  and  inflamed  into  insur- 
rection by  popular  clamor;  to  maintain  the  neutrahty  of 
the  nation  in  spite  of  the  usurpations  of  foreign  armaments, 
consuls,  ministers  and  directories;  to  compel  obedience 
to  commercial  restrictions  of  which  they  on  whom  they 

*  Review  of  Law  Reports,  by  Caleb  Gushing,  North  Amer.  Ra'.,  Vol. 
XVIII  (1824). 


252  A  HISTORY  OF  THE  AMERICAN  BAR 

fell  most  heavily,  would  not  acknowledge  the  utility, 
efficiency  or  expediency;  to  withstand  the  pretensions 
of  individual  States  to  independent  sovereignty;  in  short 
to  guarantee  the  integrity  of  our  Constitution  wherever 
that  instrument  opposed  the  feelings  or  combatted  the 
clauns  of  constituent  members  of  the  Union." 

John  Adams,  however,  in  the  closing  days  of  his  ad- 
ministration, placed  the  Supreme  Court  at  one  stroke 
upon  the  pinnacle  which  it  has  ever  since  held,  by  his  ap- 
pointment of  John  Marshall,  on  January  31,  1801,  Chief 
Justice  — "a  man  bom  to  be  the  Chief  Justice  of  any 
country  into  which  Providence  should  have  cast  him," 
said  William  Pinkney.^ 

A  curious  episode  in  the  history  of  the  Federal  judiciary 
occurred  soon  after  Marshall's  appointment,  in  the  pas- 
sage of  the  Act  of  February  13, 1801,  reducing  the  number 
of  Associate  Supreme  Court  Justices  to  four,  relieving  them 
of  Circuit  Court  duty,  and  creating  six  new  Circuits,  each 
(with  the  exception  of  the  Sixth  Circuit  in  Kentucky  and 
Tennessee)  with  a  Chief  Justice  and  two  assistant  judges. 
The  appointment  of  these  sixteen  new  judges  on  the  very 
eve  of  President  Adams'  retirement  from  office  gave  rise 
to  the  derisive  name  of  "Midnight  Judges,"  and  to  an  ex- 
tremely bitter  partisan  attack  by  the  Republicans.  Not- 
withstanding that  lawyers  of  the  highest  character  had 
been  appointed,  such  as  William  Tilghman  of  Pennsyl- 
vania, John  Lowell  of  Massachusetts,  Jeremiah  Smith  of 
New  Hampshire,  Egbert  Benson  of  New  York,  Philip 
Barton  Key  of  Maryland,  and  Thomas  Bee  of  South  Caro- 
lina, the  Act  was  repealed,  April  29,  1802,  at  President 

»  Edward  C.  Marshall,  youngest  son  of  the  Chief  Justice,  writing  of  a 
visit  to  John  Adams  in  1825,  said:  "He  gave  me  a  most  cordial  reception, 
and,  grasping  my  hand,  told  me  that  his  gift  of  Mr.  John  Marshall  to  the 
people  of  the  United  States  was  the  proudest  act  of  his  life." 


THE  FEDERAL  BAR  xVXD  LAW,   1789-1815  253 

Jefferson's  behest;   and  the  new  Courts  came  to  a  sudden 
end.' 

The  prevalent  fear  of  the  multiplication  of  Federal 
Courts  and  the  consequent  infringement  on  the  rights 
of  the  States  is  vividly  shown  in  a  scries  of  articles  by  a 
prominent  Boston  Anti-Federalist,  Benjamin  Austin,  pub- 
lished by  the  Independent  Chronicle  in  1801,  in  which  he 
refers  to  these  new  Circuit  Courts  as  follows: 

"This  extensive  machine,  moving  under  the  weight  of 
a  column  of  supernumerary  judges,  attended  with  the 
immense  expense  of  their  establishments,  it  is  feared  would 
ultimately  reduce  the  people  to  the  most  abject  state  of 
servitude.  Lawyers  would  generate  in  tenfold  propor- 
tion to  other  professions,  and  in  time  the  country  w^ould 
be  as  generally  overrun  by  this  'order'  as  Egypt  with 
Mamelukes." 

The  new  Act  of  1802,  divided  the  country  into  sLx  Cir- 
cuits, restored  the  number  of  Supreme  Court  Associate 
Justices  to  five,  and  assigned  each  Judge  of  the  Court  per- 
manently to  one  Circuit.  The. Federal  judicial  system,  as 
thus  finally  established,  continued  without  important 
change  until  1869,  the  nimiber  of  Associate  Justices  being 

*  The  repealing  act  passed  by  a  strict  party  vote  of  16  to  15  in  the  Senate, 
and  56  to  30  in  the  House. 

As  the  list  of  these  unfortunate  Federal  judges  who  held  office  only  four- 
teen months  is  rarely  published,  it  may  be  of  interest  to  insert  it  here: 

First  Circuit:  John  Lowell  of  Massachusetts,  Chief  Judge;  Jeremiah 
Smith  of  New  Hampshire,  and  Benjamin  Bourne  of  Rhode  Island.  Second 
Circuit:  Egbert  Benson  of  New  York,  Chief  Judge;  Oliver  Wolcott  of 
Connecticut,  and  Samuel  Hitchcock  of  Vermont.  Third  Circuit:  William 
Tilghman  of  Pennsylvania,  Chief  Judge;  Richard  Bassett  of  Delaware, 
and  William  Griffith  of  New  Jersey.  Fourth  Circuit:  Philip  Barton  Key  of 
Mar>'land,  Chief  Judge  (vice  Charles  Lee  declined);  George  Keith  Taylor 
and  Charles  Magill  of  Virginia.  Fifth  Circuit:  Thomas  Bee  of  South 
Carolina,  Chief  Judge;  John  Sitgreaves  of  North  Carolina  and  Joseph  Claj', 
Jr.,  of  Georgia.    Sixth  Circuit:  William  !McClung  of  Kentucky. 


254  A  HISTORY  OF  THE  AMERICAN  BAR 

increased  to  six  in  1807  to  pro\ide  one  for  a  Western  Cir- 
cuit, and  to  eight  in  1837. 

With  the  installation  of  Marshall,  the  Supreme  Court 
moved  to  Washington,  and  its  first  term  held  in  the 
Capitol  was  in  August,  1801.  At  that  time  the  "Federal 
City,"  as  it  was  known,  was  hardly  more  than  a  fever- 
stricken  morass. 

"The  half  finished  White  House  stood  in  a  naked  field, 
overlooking  the  Potomac,  with  two  awkward  Department 
buildings  near  it,  a  single  row  of  brick  houses  and  a  few 
isolated  dwellings  within  sight  and  nothing  more;  until 
across  a  swamp,  a  mile  and  a  half  away,  the  shapeless,  un- 
finished capitol  was  seen,  two  wings  without  a  body.  .  .  . 
Discontented  men  clustered  together  in  eight  or  ten  board- 
ing houses,  as  near  as  possible  to  the  capitol."  ^ 

As  late  as  1808,  Sir  James  Jackson,  the  British  Minister, 
described  the  city  as  "five  miles  long,  the  scattered  houses 
intersected  with  woods,  heaths  and  gravel  pits.  I  put  up 
a  covey  of  partridges  within  three  hundred  yards  of  the 
house  of  Congress,  yclept  the  capitol.  It  is  more  like 
Hampstead  Heath  than  a  city."  Of  the  difficulties  of  a 
journey  to  the  city,  there  are  many  contemporary  de- 
scriptions. Edmund  Quincy  writes  that  his  mother  (wife 
of  Josiah  Quincy,  President  of  Harvard  College  and  pre- 
viously Congressman)  "used  to  describe  the  discomforts, 
and  dangers  even,  of  the  journeys  to  Washington  from 
Boston,  as  things  to  remember  to  the  end  of  a  long  life."  ^ 

^  History  of  the  United  States,  by  Henry  Adams,  Vol.  I. 

'  Life  of  Josiah  Quincy,  by  Edmund  Quincy. 

Hon.  Elijah  H.  Mills,  of  Northampton,  the  leader  of  the  Western  Bar 
in  Massachusetts,  wrote  to  his  wife  from  Washington  in  1815.  (See  Mass. 
Hist.  Soc.  Proc,  Vol.  XIX): 

"My  anticipations  were  almost  infinitely  short  of  the  reality,  and  I  can 
truly  say  that  the  first  appearance  of  this  seat  of  the  National  Government 
has  produced  in  me  nothing  but  absolute  loathing  and  disgust.  .  .  .  From 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         255 

Judge  Story  wrote  to  his  wife,  in  1812:  "It  will  probably 
take  me  twelve  days  to  reach  home  after  I  set  out  on  the 
journey." 

"Between  Boston  and  New  York  was  a  tolerable  high- 
way, along  which,  thrice  a  week,  light  stage  coaches  car- 
ried passengers  and  mail,  in  three  days.  From  New  York, 
a  stage  coach  started  for  Philadelphia  every  week  day, 
consuming  the  greater  part  of  two  days,  the  road  between 
Paulus  Hook  (now  Jersey  City)  and  Hackensack,  being 
exceedingly  bad.  South  of  Philadelphia  it  was  tolerable 
as  far  as  Baltimore,  but  beyond  Baltimore  it  meandered 
through  forests.  Four  miles  an  hour  was  average  speed 
everywhere.  Beyond  the  Potomac,  the  roads  were  steadily 
worse;  and  south  of  Petersburg,  even  the  mails  were  car- 
ried on  horseback.  Except  for  a  stage  coach  which  plied 
between  Charleston  and  Savannah,  no  public  conveyance 
of  any  kind  was  mentioned  in  the  three  Southernmost 
States.  Of  eight  rivers  in  the  one  hundred  miles  between 
Monticello  and  Washington,  Jefferson  wrote,  in  1801, 
"five  have  neither  bridges  nor  boats."  Six  cents  a  mile 
was  the  usual  stage  fare.  The  cost  of  a  journey  from 
Baltimore  to  New  York  was  about  $21."  ^ 

The  journey  from  Charleston,  South  Carolina,  was  even 

Washington  to  Baltimore  we  went  in  the  first  day.  There  we  took  passage 
in  a  packet  for  French-Town,  in  the  Chesapeake  Bay,  and  were  delayed  by  a 
dead  calm,  so  that  we  were  twenty-four  hours  performing  a  passage  usually 
completed  in  six.  On  Wednesday,  we  left  our  packet  and  went  over- 
land to  Newcastle.  There  we  again  took  a  packet,  and  arrived  in  Philadel- 
phia late  in  the  evening.  On  Thursday,  we  remained  in  that  city,  the  stage 
being  too  full  to  receive  us  that  day.  .  .  .  This  morning  we  left  it  at  two 
o'clock,  and  ought  to  have  arrived  in  New  York  this  evening.  But  the  ex- 
cessive badness  of  the  roads  has  arrested  our  progress  at  a  distance  of  about 
forty  miles  from  it.  I  shall  make  no  stay  in  New  York,  but  shall  press  my 
journey  with  all  the  rapidity  in  my  power,  and  shall  be  with  you,  my  dear 
Harriette,  I  hope,  by  the  Friday  stage." 

^  History  of  the  United  States,  by  Henry  Adams. 


256  A  HISTORY  OF  THE  AMERICAN  BAR 

more  of  a  task,  requiring  from  ten  days  to  three  weeks, 
according  to  the  lightness  of  the  vehicle  and  swiftness 
of  horse,  the  state  of  the  rivers  and  swamps,  or,  if 
one  went  by  Philadelphia  packet,  the  fairness  of  the 
winds.^ 

For  these  reasons,  the  cases  before  the  Supreme  Court 
were,  as  a  rule,  argued  by  counsel  who  could  make  the 
journey  thither  with  the  least  difficulty;  consequently  the 
Pennsylvania,  Maryland,  and  Virginia  Bars  had  a  prac- 
tical monopoly. 

Peter  S.  DuPonceau,  of  Pennsylvania,  thus  describes 
the  attendance  of  lawyers  from  that  State: 

"The  counsel  engaged  in  those  causes  were  in  the  habit 
of  going  together  to  Washington  to  argue  their  cases.  These 
were  Mr.  Ingersoll,  Mr.  Dallas,  Mr.  Lewis,  Mr.  Edward 
Tilghman,  Mr.  Rawle  and  myself.  We  hired  a  stage  to 
ourselves  in  which  we  proceeded  by  easy  journies.  The 
Court  sat  then  in  the  month  of  February,  so  that  we  had 
to  travel  in  the  depth  of  winter  through  bad  roads  in  no  very 
comfortable  way.  Nevertheless,  as  soon  as  we  were  out 
of  the  city,  and  felt  the  flush  of  air,  we  were  like  school 
boys  in  the  playground  on  a  hoHday. 

''Flashes  of  wit  shot  their  corruscations  on  all  sides; 
puns  of  the  genuine  Philadelphia  stamp  were  handed  about, 
old  college  stories  were  revived,  songs  were  sung  —  in  short 
it  might  have  been  taken  for  anything  but  the  grave 
counsellors  of  the  celebrated  Bar  of  Philadelphia  —  except 
Mr.  Ingersoll,  who,  sad,  serious  and  composed,  rode  think- 
ing of  his  causes  and  little  inchned  to  mirth. 

"Our  appearance  at  the  Bar  of  the  Supreme  Court  was 
always  a  scene  of  triumph.  We  entered  the  hall  together,  and 
Judge  Washington  was  heard  to  say,  'This  is  my  Bar.' 
Our  causes  had  a  preference  over  all  others,  in  consider- 
ation of  the  distance  we  had  to  travel."^ 

*  Life  of  William  Lowndes,  by  Mrs.  St.  J.  Ravenel. 

2  See  Letter  of  P.  S.  DuPonceau  in  Penn.  Hist.  Soc.  Coll.,  Vol.  IV. 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         257 

Joseph  Story  gives  the  following  lively  description  of 
the  Pennsylvania  Bar  before  the  Supreme  Court  in  1808: ' 

"DuPonceau  is  a  Frenchman  by  birth,  and  a  very  in- 
genious counsellor  at  Philadelphia.^  He  has  the  reputation 
of  great  subtilty  and  acuteness,  and  is  excessively  minute  in 
the  display  of  his  learning.  His  manner  is  animated  but  not 
impressive,  and  he  betrays  at  every  turn  the  impatience 
and  the  casuistry  of  his  nation.  His  countenance  is  striking, 
his  figure  rather  awkward.  A  small,  sparkling,  black  eye, 
and  a  thin  face,  satisfy  you  that  he  is  not  without  quick- 
ness of  mind;  yet  he  seemed  to  me  to  exhaust  himself  in 
petty  distinctions,  and  in  a  perpetual  recurrence  to  doubt- 
ful, if  not  to  inclusive  arguments.  His  reasoning  was 
rather  sprightly  and  plausible,  than  logical  and  coercive; 
in  short,  he  is  a  French  advocate.  Tilghman  is  quite  an  old 
man,  of  an  unpromising  appearance;  his  face  indicates 
rather  a  simplicity  and  weakness  of  character.  Indeed, 
when  I  first  saw  him,  I  could  not  persuade  myself  that 
he  possessed  any  talent.  I  heard  his  argument,  and  it 
was  strong,  clear,  pointed,  and  logical.  Though  his  manner 
was  bad,  and  his  pronounciation  not  agreeable,  every 
person  listened  with  attention,  and  none  were  disappointed. 
Rawle  is  quite  a  plain  but  genteel  man,  and  looks  like 
a  studious,  ingenious,  and  able  lawyer.  He  argues  ^^•ith  a 
very  pleasant  voice,  and  has  great  neatness,  perspicacity, 
and  even  elegance.  He  keeps  his  object  steadily  in  view; 
he  distinguishes  with  care,  enforces  with  strength,  and 
if  he  fail  to  convince  he  seldom  spends  his  thoughts  vainly. 
Ingersoll  has  rather  a  peculiar  face,  and  yet  in  person  or 
manner  has  nothing  which  interests  in  a  high  degree.  He 
is  more  animated  than  Rawle,  but  has  less  precision;  he 
is  learned,  laborious,  and  minute,  not  eloquent,  not  declam- 
atory but  diffuse.  The  Pennsylvanians  consider  him  a 
perfect  dragnet,  that  gathers  everything  in  its  course. 
Dallas  is  a  book-man,  ready,  apt,  and  loquacious,  but 
artificial.  He  is  of  a  strong,  robust  figure,  but  his  voice 
seems  shrill   and   half  obstructed.     He  grows  warm   by  1 

*  Life  and  Letters  of  Joseph  Story,  by  W.  W.  Story  (1S51). 

*  Born  in  1760. 


25S  A  HISTORY  OF  THE  AMERICAN  BAR 

method,  and  cools  in  the  same  manner.  He  wearies  with 
frequent  emphasis  on  subordinate  points,  but  he  cannot 
be  considered  as  unscientific  or  wandering.  Lee,  of  Vir- 
ginia, is  a  thin,  spare,  short  man;  you  cannot  believe  that 
he  was  Attorney  General  of  the  United  States." 

Maryland  lawyers  were  especially  distinguished  for  their 
knowledge  of  the  science,  and  their  skill  in  the  practise, 
of  special  pleading;  and  the  acknowledged  head  of  the 
profession  in  that  State  was  Luther  Martin,  Attorney- 
General  of  the  State  for  many  years,  a  lawyer  of  great 
force,  of  profound  learning  and  memory.^  Unfortunately 
he  was  often  discursive,  slipshod,  and  sometimes  inaccurate. 
The  rude  vigor,  pertinacity,  and  fearless  courage  of  the 
man  made  him  hated  by  those  whom  he  opposed  —  "an 
unprincipled,  impudent,  Federal  bull  dog,"  so  Jefferson 
called  him. 

No  tribute  has  ever  been  paid  to  a  lawyer  in  the  United 
States  so  remarkable  as  the  action  taken  by  the  Maryland 
Legislature,  in  1822,  in  passing  a  resolve  imposing  a  license 
tax  on  every  practising  attorney,  of  $5  aimually,  to  be 
paid  to  trustees  "for  the  use  of  Luther  Martin,"  he  being 
at  the  time  broken  in  health  and  in  fortune.^ 

Story  gives  this  picture  of  Martin,  before  the  Supreme 
Court  in  1808:  ^ 

1  Born  in  1748,  a  Princeton  graduate  of  1766,  admitted  to  the  Bar  in  1 771, 
Attorney-General  of  Maryland  1 778-1805,  and  again  in  1818. 

2  This  Resolve  of  the  Legislature  of  Maryland  passed  in  February,  1822, 
was  as  follows:  ^^ Resolved  that  each  and  every  practitioner  of  law  in  this 
State  shall  be  and  he  is  hereby  compelled  ...  to  obtain  from  the  Clerk  of 
the  County  Court  in  which  he  may  practice,  a  license  to  authorize  him  so  to 
practice,  for  which  he  shall  pay  annually  .  .  .  the  sum  of  five  dollars,  which 
said  sum  is  to  be  deposited  ...  in  the  treasury  .  .  .  subject  to  the  order  of 
Thomas  Hall  and  William  H.  Winder,  Esquires,  who  are  hereby  appointed 
trustees  for  the  application  of  the  proceeds  raised  by  virtue  of  this  resolu- 
tion to  the  use  of  Luther  Martin  .  .  .  and  provided  that  this  resolution 
shall  cease  to  be  valid  at  the  death  of  the  said  Luther  Martin." 

3  Life  and  Letters  of  Joseph  Story,  by  W.  W.  Story,  Vol.  I.    See  also 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         259 

"Shall  I  turn  you  to  Luther  Martin,  that  singular  com- 
pound of  strange  qualities?  With  a  professional  income 
of  $10,000  a  year,  he  is  poor  and  needy;  generous  and 
humane,  but  negligent  and  profuse.  He  labors  hard  to 
acquire,  and  yet  cannot  preserve.  Experience,  however 
severe,  never  corrects  a  single  habit.  I  have  heard  anec- 
dotes of  his  improvidence  and  thoughtlessness  which 
astonishes  me.  He  is  about  the  middle  size,  a  little  bald, 
with  a  common  forehead,  pointed  nose,  inexpressive  eye, 
large  mouth,  and  well  formed  chin.  His  dress  is  slovenly. 
You  cannot  believe  him  a  great  man.  Nothing  in  his  voice, 
his  action,  his  language  impresses.  Of  all  men  he  is  the 
most  desultory,  wandering,  and  inaccurate.  Errors  in 
grammar,  and,  indeed,  an  unexampled  laxity  of  speech, 
mark  him  everywhere.  .  .  .  But  everyone  assures  me 
that  he  is  profoundly  learned,  and  that  though  he  shines 
not  now  with  the  lustre  of  his  former  days,  yet  he  is  at  times 
very  great.  He  never  seems  satisfied  with  a  single  grasp 
of  his  subject;  he  urges  himself  to  successive  efforts,  until 
he  moulds  and  fashions  it  to  his  purpose.  You  should 
hear  of  Luther  Martin's  fame  from  those  who  have 
known  him  long  and  intimately,  but  you  should  not  see 
him." 

After  the  argument  of  his  first  case  in  the  Supreme 
Court  in  1806,  another  Maryland  lawyer,  William  Pinkney, 
stepped  to  the  front,  where  he  remained  until  his  death  in 
1822  —  the  undisputed  head  of  the  American  Bar.^     So 

Luther  Martin,  American  Law  Review,  Vol.  I;  Luther  Martin,  by  Henry  P. 
Goddard,  Froc.  Maryland  Hist.  Soc.  (1S87);  Luther  Martin  as  a  La-jjyer 
and  Lover,  Maryland  Bar  Ass.,  Vol.  IV  (1899). 

^  Bom  in  1764,  studied  with  Judge  Samuel  Chase,  admitted  to  prac- 
tise in  1768,  United  States  Attorney-General  1811-1814,  United  States 
Senator  1820.  His  first  case  in  United  States  Supreme  Court  was  Manclla 
V.  Barry,  3  Cranch,  415.  See  for  his  biography,  Willia,m  Pinkney,  by  Henry 
Flanders,  Proc.  N.  Y.  State  Bar  Ass.  (1906);  Lives  of  the  Chief  Justices,  by 
Henr>'  Flanders;  Life  and  Letters  of  Joseph  Story,  by  W.  W.  Storj^;  Mis- 
cellaneous Works,  by  Joseph  Story;  Life  and  Times  of  Roger  B.  Taney,  by 
Samuel  Tyler;  Familiar  Letters  on  Public  Characters,  by  William  Sulli\an  — 
in  which  interesting  anecdotes  are  told  of  Pinkney's  appearance  before  the 


26o  A  HISTORY  OF  THE  AMERICAN  BAR 

great  was  his  practise  that  in  the  eighth  volume  of  Cranch's 
Reports  he  is  found  arguing  in  twenty-three  out  of  forty- 
six  cases.  The  comments  of  his  contemporaries  are  inter- 
esting. "He  appears  to  me,"  wrote  Story  when  a  Judge  of 
the  Court  in  1812,  "a  man  of  consummate  talents.  He 
seizes  his  subject  with  the  comprehension  and  vigor  of  a 
giant  and  he  breaks  forth  with  a  lustre  and  a  strength  that 
keep  the  attention  forever  on  the  stretch."  Chief  Justice 
Marshall  stated  that  he  never  knew  his  equal  as  a  reasoner 
—  so  clear  and  luminous  was  his  method  of  argumentation; 
and  he  further  said:  "Mr.  Pinkney  was  the  greatest  man 
I  have  ever  seen  in  a  court  of  justice."  "He  had  an  oceanic 
mind,"  said  William  Wirt,  "he  was  the  most  thoroughly 
equipped  lawyer  I  ever  met  in  the  courts." 

Chief  Justice  Taney  wrote  of  Pinkney  in  1854:  "I  have 
heard  almost  all  the  great  advocates  of  the  United  States, 
both  of  the  past  and  present  generations,  but  I  have  never 
seen  one  equal  to  him." 

Pinkney's  preparation  of  his  cases  and  arguments  was 
elaborate  to  the  uttermost  degree.  Though  in  manner,  a 
fop,  arrogant,  vain  and  often  boisterous,  though  laboring 
under  the  handicap  of  a  harsh  and  feeble  voice,  "yet  not- 
withstanding these  defects,"  wrote  Story,  "such  is  his  strong 
and  cogent  logic,  his  elegant  and  perspicuous  language,  his 
flowing  graces,  and  rhetorical  touches,  his  pointed  and 
persevering  argimients,  that  he  enchants,  interests,  and 
almost  irresistibly  leads  away  the  understanding." 

The  lawyer  whose  name  appears  in  more  cases  than  any 

Massachusetts  Supreme  Court;  William  Pinkney,  by  Rev.  William  Pink- 
ney (1853);  Life,  Writings  and  Speeches  of  William  Pinkney,  by  Henry 
Wheaton  (1826);  Review  of  Wheaton's  Life  of  Pinkney,  North  Amer.  Rev., 
Vol.  XXIV  (1826). 

For  a  contemporaneous  estimate  of  Pinkney's  eloquence,  see  extract 
from  Charleston  City  Gazette,  quoted  in  New  York  Evening  Post,  February 
25,  1820. 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         261 

other  member  of  the  Bar  between  1800  and  1815  also  came 
from  Maryland  —  Robert  Goodloe  Harper  —  able  in  mer- 
cantile cases,  a  thorough  lawyer  and  a  felicitous  and  grace- 
ful orator,'  Philip  Barton  Key ,2  Francis  Scott  Key,^  W.  H. 
Winder,"^  and  David  Hoffman  ^  were  also  prominent  repre- 
sentatives of  the  Maryland  Bar. 

The  Virginia  Bar  at  this  period  was  especially  brilliant; 
and  five  men  argued  a  large  proportion  of  the  cases  in 
that  State  —  John  Wickham,^  John  Warden,  Daniel  CalV 
Edmund  Randolph,  and  William  Wirt.^ 

Of  the  District  of  Columbia  Bar,  Walter  Jones,^  Charles 
Simms  and  Thomas  Swann  formed  an  eminent  trio  with 
an  immense  practise. 

From  the  other  States  of  the  Union  a  mere  handful  of 
counsel  appeared.  Roger  Griswold  of  Connecticut '°  argued 
in  a  case  in  1801.  James  A.  Bayard  of  Delaware  appeared 
in  1803;  John  Quincy  Adams  of  Massachusetts  and  Wil- 
liam Hunter  of  Rhode  Island  "  appeared  in  a  noted  case 
{Head  v.  Providence  Insurance  Company ^  2  Cranch,  127)  in 
1 804- 1 805.  A  Massachusetts  case  in  the  same  volume 
{Graves  v.  Boston  Marine  Insurance  Company)  was  argued 
by  Richard  Stockton  of  New  Jersey  and  Luther  Martin 

*  Bom  in  1765,  Princeton  1785,  admitted  to  the  Bar  in  Charleston,  South 
Carolina  1786,  son-in-law  of  Charles  Carroll  of  Carrollton,  United  States 
Senator  1815-1821. 

*  Born  in  1757. 

'  Bom  in  1780,  nephew  of  P.  B.  Key. 

*  Born  in  1775. 

*  Bom  in  1784. 

*  Bora  in  1763. 

^  Bom  about  1765. 

^  Bom  in  1772,  United  States  Attorney-General  1817-1829. 

'  Born  in  1775,  admitted  to  practise  in  1796,  United  States  District- 
Attorney  1802-1821. 

*•*  Bom  in  1762,  Yale  1780,  Judge  of  Supreme  Court  of  Connecticut 
1807. 

"  Born  in  1774,  Brown  1791,  United  States  Senator  1S11-1S21. 


262  A  HISTORY  OF  THE  AMERICAN  BAR 

of  Maryland,  against  R.  G.  Harper  and  F.  S.  Key  of  Mary- 
land and  Jared  IngersoU  of  Pennsylvania.  John  Drayton  ^ 
of  South  Carolina  appeared  in  1807  in  Rose  v.  Himely  (4 
Cranch).  Henry  Clay^  from  Kentucky,  made  his  appear- 
ance in  1808,  in  Skillem's  Executors  v.  May's  Executors 
(4  Cranch).  In  1809,  Horace  Binney,  destined  to  lead  the 
Philadelphia  Bar  for  nearly  half  a  century,  made  his  first 
argument  before  the  Supreme  Court  in  Bank  of  the  United 
States  V.  Deveaux;  ^  and  in  the  same  year  he  appeared  in 
a  case  with  John  Quincy  Adams  and  IngersoU.  Edward 
Livingston  of  New  York  and  Louisiana  appeared  also  in 

1809. 

In  7  and  8  Cranch  (1812-1814),  Samuel  Dexter,  Daniel 
Da\ds  and  Rufus  G.  Amory  of  Massachusetts,  and  Pitkin 
and  Putnam  of  Rhode  Island,  appear  in  various  prize 
cases.  In  18 14,  the  name  of  Daniel  Webster  appears,  for 
the  first  time,  he  having  been  admitted  to  practise  before 
the  Supreme  Court  in  the  winter  of  1813-1814.  The  next 
year,  Clay,  Charles  A.  Wickliffe,''  and  George  M.  Bibb '  of 
Kentucky,  argued;  and  for  the  first  time  prominent  New 
York  counsel  appear,  when  Thomas  Addis  Emmet  and  J. 
Ogden  Hoffman  argued  the  famous  case  of  The  Nereide 
(9  Cranch,  388)  against  Dallas  and  Pinkney. 

Such  were  the  lawyers  who  built  up  the  fabric  of  early 
American  law;  and,  as  has  been  justly  remarked:  "While 
no  judge  ever  profited  more  from  argument;  it  is  not,  per- 
haps, diverging  into  the  circle  of  exaggeration  to  say,  that 
no  Bar  was  ever  more  capable  of  aiding  the  mind  of  the 

^  Born  in  1766. 

*  Bom  in  Virginia  in  1777,  admitted  to  the  Bar  in  1797. 

»  Bom  in  1780,  a  Harvard  graduate  of  1797,  studied  in  office  of  Jared 
IngersoU,  admitted  to  the  Bar  in  1800. 

4  Bora  in  1788. 

6  Bom  in  1772,  Princeton  1792,  author  of  Bibb's  Reports,  1808-1811, 
Chief  Justice  of  Kentucky,  United  States  Senator  1811-1814,  1829-1835. 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         263 

Bench,  than  the  Bar  of  the  Supreme  Court,  in  the  time  of 
Chief  Justice  Marshall." 

The  Attorneys-General  of  the  United  States  during  this 
period  were  Edmund  Randolph  of  Virginia,  appointed  in 
1789;  William  Bradford  of  Pennsylvania,  in  1794;  Charles 
Lee  of  Virginia,  in  1795;  Theophilus  Parsons  of  Massa- 
chusetts, appointed  in  1801,  but  who  never  served;  Levi 
Lincoln  of  Massachusetts,  in  1801;  Robert  Smith  of  Mary- 
land, in  1805;  John  Breckenridge  ^  of  Kentucky,  in  1805; 
Caesar  A.  Rodney,^  of  Delaware,  in  1807;  William  Pinkney 
of  Maryland,  in  181 1;  Richard  Rush  ^  of  Pennsylvania, 
in  1814. 

In  the  above  list  of  the  Bar  practising  before  the  Supreme 
Court,  the  names  of  many  notable  lawyers  who  practised 
only  in  State  courts  are  lacking,  perhaps  the  most  notable 
omission  being  that  of  Aaron  Burr  who,  though  a  leader  of 
the  New  York  Bar,  never  argued  a  case  before  the  United 
States  Supreme  Court.  While  the  Bars  of  New  Hampshire, 
New  York  and  Massachusetts  at  this  time  were  of  peculiar 
lustre,  their  practise  was  largely  local. 

The  part  played  by  American  lawyers  in  the  develop- 
ment of  American  law  can  be  best  comprehended  by  a 
rapid  survey  of  some  of  the  noted  cases  in  the  United  States 
Supreme  Court  during  these  years.  And  while  the  whole 
trend  of  political  and  economic  history  was  fixed  by  the 
decisions  of  Chief  Justice  Marshall,  a  share  in  the  tributes 
paid  to  the  greatness  of  those  decisions  must  be  awarded 
to  .  the  great  counsel  who  argued  before  the  Court.  In 
this  connection,  the  views  expressed  by  the  Court  and  by 
contemporary  writers  as  to  these  arguments  and  decisions 
will  be  found  of  interest. 

*  Bora  in  1760,  United  States  Senator  1S01-1805. 

*  Born  in  1772,  University  of  Pennsylvania  1789. 
'  Born  in  1780,  Princeton  1797. 


264  A  HISTORY  OF  THE  AMERICAN  BAR 

Only  five  reported  cases  had  been  decided  between  the 
time  when  Marshall  took  his  seat  on  the  Bench  and  Feb- 
ruary 24,  1803,  the  date  when  he  rendered  the  first  of  a 
long  line  of  decisions  which  were  to  estabUsh  the  United 
States  Constitution  irrevocably  as  the  supreme  law  of 
the  land,  and  the  Supreme  Court  as  the  final  arbiter  of  its 
construction  and  of  the  vaHdity  of  State  and  Federal 
statutes.  This  was  the  case  of  Marbury  v.  Madison  (i 
Cranch,  137).  It  was  argued  by  Charles  Lee  of  Virginia, 
Ex-Attorney-General  and  by  Levi  Lincoln  of  IMassachusetts, 
Attorney-General.    Of  its  decision  Rufus  Choate  said  later: 

"I  do  not  know  that  I  can  point  to  one  achievement  in 
American  statesmanship  which  can  take  rank  for  its  con- 
sequences of  good  above  that  single  decision  of  the  Supreme 
Court  which  adjudged  that  an  act  of  the  legislature  con- 
trary to  the  Constitution  is  void  and  that  the  judicial 
department  is  clothed  with  the  power  to  ascertain  the 
repugnancy  and  pronounce  the  legal  conclusion.  That  the 
framers  of  the  Constitution  intended  this  to  be  so  is  cer- 
tain; but  to  have  asserted  it  against  Congress  and  the 
Executive,  to  have  vindicated  it  by  that  easy  yet  adaman- 
tine demonstration  than  which  the  reasonings  of  mathe- 
matics show  nothing  surer,  to  have  inscribed  this  vast 
truth  of  conservatism  upon  the  pubUc  mind  so  that  no 
demagogue  not  in  the  last  stages  of  intoxication  denies 
it  — this  is  an  achievement  of  statesmanship,  of  which  a 
thousand  years  may  not  exhaust  or  reveal  all  the  good."  ^ 

The  decision  was  regarded  far  otherwise,  however,  by 
the  contemporary  political  opponents  of  Marshall;  and  a 
prominent  Anti-Federalist  newspaper  in  Boston  thus  ex- 
pressed its  views: 

"The  efforts  of  Federalism  to  exalt  the  Judiciary  over 
the  Executive  and  Legislature,  and  to  give  that  favorite 

^  The  Position  and  Functions  of  the  American  Bar  as  an  Element  of  Con- 
servation in  the  State,  by  Rufus  Choate,  July  3,  1845. 


THE  FEDERAL  BAR  AND  LAW,  1 789-181 5         265 

department  a  political  character  and  influence  .  .  .  will 
probably  terminate  in  the  degradation  and  disgrace  of  the 
judiciary.  .  .  .  The  attempt  of  the  Supreme  Court  of  the 
United  States  by  a  mandamus  to  control  the  executive 
functions  is  a  new  experiment.  It  seems  to  be  no  less 
than  a  commencement  of  war  between  the  constituted 
departments.  The  Court  must  be  defeated  and  retreat 
from  the  attack;  or  march  on  till  they  incur  an  impeach- 
ment and  removal  from  office."  ^ 

For  many  years,  the  authority,  as  law,  of  the  doctrines 
announced  by  Marshall  in  this  case  were  bitterly  opposed 
by  Jefferson  and  his  adherents;  and  he  wrote  to  George 
Hay  during  Burr's  trial,  in  1807: 

"  I  observe  that  the  case  of  Marbury  v.  Madison  has  been 
cited  in  the  Burr  case,  and  I  think  it  material  to  stop  at  the 
threshold  the  citing  that  case  as  authority,  and  to  have 
it  denied  to  be  law.  ...  I  have  long  wished  for  a  proper 
occasion  to  have  the  gratuitous  opinion  in  Marbury  v. 
Madison  brought  before  the  public  and  denounced  as  not 
law;  and  I  think  the  present  a  fortunate  one  because  the 
case  occupies  such  a  place  in  the  public  attention.  I  shall 
be  glad,  therefore,  if  in  noticing  that  case,  you  could  take 
occasion  to  express  the  determination  of  the  Executive 
that  the  doctrines  of  that  case  were  given  extra-judicially 
and  against  law,  and  that  their  reverse  will  be  the  rule 
of  action  with  the  Executive."  ^ 

^  See  Independent  Chronicle,  March  10,  1803. 

*  See  Writings  of  Thomas  JeJJerson,  Vol.  IX. 

This  power  to  declare  legislative  acts  void  was  asserted  as  early  as  1 780, 
by  the  Supreme  Court  of  New  Jersey,  in  Holmes  v.  Walton,  a.  case  referred 
to  in  State  v.  Parkhursl  (4  Halstead,  444).  The  Virginia  Court  decided  the 
same  way,  in  Com.  v.  Calon  (4  Call,  5),  in  1782,  and  in  the  Case  of  the 
Judges  (4  Call,  13s),  in  1788,  and  in  Kamper  v.  Hawkins  (i  Va.  Cases,  20),  in 
1793.  The  Rhode  Island  Court  held  the  same  in  Trevett  v.  Weeden,  in  1786; 
North  Carolina  and  Massachusetts  followed  with  cases  in  178S. 

For  interesting  discussion  of  the  subject,  see  Origin  and  Scope  of  the 
American  Doctrine  of  Constitutional  Law,  by  Prof.  J.  B.  Thayer,  Haro. 
Law  Rev.,  Vol.  XII  (1893);  and  J.  W.  Burrage,  in  Political  Science  Quarterly, 
Vol.  X  (1895);   and  An  Essay  on   Judicial  Power  over  Unconstitutional 


266  A  HISTORY  OF  THE  AMERICAN  BAR 

The  decision  in  this  famous  case  was  not  rendered  until 
over  a  year  after  its  argument  on  December  4,  1801, 
owing  to  a  very  peculiar  piece  of  political  interference  with 
the  Court  (the  only  instance  of  the  kind  in  its  history, 
except  the  action  of  Congress  in  1866).  It  happened  as 
follows:  from  1789  until  the  passage  of  the  Act  of  February 
13,  1 80 1,  the  terms  of  the  Supreme  Court  were  held  in 
February  and  August;  the  Act  of  1801  provided  that  they 
should  be  held  in  June  and  December.  Accordingly,  the 
Court  sat  in  December,  1801,  heard  the  argument  in 
Marhiiry  v.  Madison,  and  adjourned,  expecting  to  meet  in 
June,  1802.  In  the  meantime,  however,  Congress  met, 
repealed  all  the  judiciary  legislation  of  the  Adams  ad- 
ministration, and  reinstated  the  old  August  and  February 
terms.  Later,  fearing  that  Marshall  and  his  Court  might' 
hold  the  repealing  statute  unconstitutional,  Congress 
abolished  the  August  term  and  provided  that  the  Court 
should  have  only  a  February  term,  thus,  in  effect,  adjourn- 
ing the  Supreme  Court  by  act  of  Congress,  from  December, 
1801,  to  February,  1803.  The  Court,  therefore,  held  no 
session  at  all  in  the  year  1802. 

It  is  interesting  to  note  that  just  one  week  after  the  de- 
cision in  Marbury  v.  Madison,  the  Court,  though  strongly 
Federalist,  rendered  a  decision  affirming  Marshall's  de- 
cision given  in  the  lower  court,  upheld  the  constitution- 

Legislation,  by  Brinton  Coxe;  The  Relation  of  the  Judiciary  to  the  Consti- 
tution, by  W.  M.  Meigs,  Amer.  Law  Rev.,  Vol.  XIX;  The  Supreme  Court 
and  Unconstitutional  Acts  of  Congress,  by  E.  S.  Corwin,  Michigan  Law 
Rev.,  Vol.  IV;  The  Conflict  over  Judicial  Powers  in  the  United  States  to 
1870,  by  Charles  G.  Haines,  Columbia  Univ.  Studies  in  Hist.  Econ.  and 
Public  Law. 

See  also  especially  addresses  of  James  T.  Mitchell  and  Hampton  L. 
Carson  in  John  Marshall,  Life,  Character  and  Judicial  Services,  by  John  F. 
Dillon  (1803);  Laws  and  Jurisprudence  of  England  and  America,  by  John 
F.  Dillon  (1895);  and  elaborate  note  in  Marshall's  Complete  Constitutional 
Decisions  Annotated,  by  John  F.  Dillon,  p.  39  (1903)- 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         267 

ality  of  Jefferson's  repealing  statute,  and  overthrew  the 
Federalist  Circuit  Court  power  —  Stuart  v.  Laird  (i 
Cranch,  308),  decided  March  2,  1803  —  thus  affording  a 
shining  illustration  of  non-political  judicial  action.^ 

Two  years  after  the  Marbury  case,  occurred  one  of  the 
most  famous  of  American  State  trials,  and  especially  noted 
for  the  eminence  of  the  counsel  engaged.  This  was  the 
impeachment  of  Samuel  Chase,  Judge  of  the  United  States 
Supreme  Court,  before  the  United  States  Senate,  presided 
over  by  Vice-President  Burr,  in  1805. 

The  attempted  impeachment  failed  disastrously,  not 
only  on  the  merits  of  the  case,  but  also  because  of  the 
overwhelming  weight  of  legal  ability  on  Chase's  side  — 
his  counsel  being  Luther  Martin,  Robert  G.  Harper,  Joseph 
Hopkinson,  Philip  B.  Key  and  Charles  Lee,  while  the  case 
of  the  House  of  Representatives  was  presented  by  John 
Randolph,  Caesar  A.  Rodney,  John  Nicholson,  Early  and 
Nelson.2 

A  year  and  a  half  later,  in  May,  1807,  came  the  trial 
of  Aaron  Burr  for  treason,  held  in  the  Circuit  Court  for 
the  District  of  Virginia,  before  Chief  Justice  Llarshall 
and  District  Judge  Cyrus  Grifiin.     No  case  of  the  day 

*  In  William  Rawle's  A  View  of  tJte  Constitution,  published  in  1825,  it  is 
said:  "The  Supreme  Court  which  affirmed  a  decision  by  which  the  validity 
of  the  repealing  act  was  established,  was  at  that  time  composed  entirelj'  of 
men  politically  adverse  to  that  which,  by  a  sudden  revolution,  had  become  the 
predominant  party  in  the  legislature.  Yet  the  decision  was  unanimously 
given,  one  of  the  judges  only  being  absent  on  account  of  ill  health.  .  .  . 
Party  taint  seldom  contaminates  judicial  functions." 

2  It  is  stated  that  "several  persons  in  the  audience  who  had  attended 
some  portion  of  the  trial  of  Warren  Hastings  avowed  Burr  presided  with 
more  dignity  than  the  Lord  Chancellor."  See  Aaron  Burr,  by  Samuel  L. 
Knapp  (183s).  It  is  to  be  noted  that  the  Impeachment  Trial  of  Warren 
Hastings  had  ended  only  ten  years  before,  in  1795,  having  begun  in  1788, 
and  the  same  preponderance  of  able  counsel  had  been  on  Hastings'  side  — 
Burke,  Fo.\  and  Sheridan  against  Law  (Lord  Ellenborough),  Sir  Thomas 
Plumer  and  Dallas. 


268  A  HISTORY  OF  THE  AMERICAN_  BAR 

aroused  more  intense  excitement  or  enlisted  a  more  bril- 
liant array  of  counsel.  For  Burr  there  appeared,  first  and 
foremost,  Edmund  Randolph,  ex-Attomey-General  of  the 
United  States,  weighty  in  counsel,  deep  in  knowledge, 
but  ponderous  in  style;  Charles  Lee  also  ex-Attomey- 
General;  John  Wickham,  the  leader  of  the  Virginia  Bar, 
famed  for  his  wit  and  versatility;  Benjamin  Botts  of  Vir- 
ginia, a  lawyer  of  much  tact,  local  knowledge  and  common 
sense;  Jack  Baker,  a  local  attorney  and  good  fellow;  and 
finally  Luther  Martin.  Burr  himself,  with  his  keen  and 
powerful  intellect,  originated  and  directed  his  whole  de- 
fence. For  the  Government  there  appeared  Caesar  A. 
Rodney,  only  recently  appointed  United  States  Attorney- 
General,  who  took  part  in  the  preliminaries  of  the  trial; 
George  Hay,  United  States  District-Attorney,  and  son- 
in-law  of  James  Monroe;  William  Wirt,  then  thirty-five 
years  old,  and  practically  at  the  beginning  of  his  brilliant 
career,  and  Alexander  McRae,  Lieutenant-Governor  of 
Virginia,  a  lawyer  of  courage  and  tenacity  but  lacking  in 
tact.  To  these  counsel,  an  interesting  tribute  was  paid 
by  the  Chief  Justice,  who  said  in  his  opinion: 

"A  degree  of  eloquence  seldom  displayed  on  any  oc- 
casion has  embellished  a  sohdity  of  argument  and  a  depth 
of  research  by  which  the  Court  has  been  greatly  aided  in 
forming  the  opinion  it  is  about  to  deliver."^ 

1  John  Randolph  was  foreman  of  the  Grand  Jury.  On  May  22,  the 
trial  began,  dragging  on  for  five  months.  The  first  fight  arose  on  Burr's 
move  to  have  a  subpoena  duces  teciun  issued  to  President  Jefferson,  against 
whom  Martin  entered  into  a  violent  invective  saying:  "He  has  let  slip  the 
dogs  of  war,  the  hell  hounds  of  persecution  to  hunt  down  my  friend."  On 
June  13,  Judge  Marshall  gave  a  decision  that  the  subpoena  should  issue. 
The  President,  however,  never  appeared,  and  for  answer  wrote  to  Hay, 
suggesting  moving  to  commit  Luther  Martin  as  particeps  criminis  with 
Burr. 

On  June  24,  the  Grand  Jury  presented  indictments  against  Burr  for 
treason  and  misdemeanors.    On  August  17,  the  jury  was  impanelled;  and 


THE   FEDERAL  BAR  AND  LAW,   1789-1815         269 

The  definition  of  the  law  of  treason  laid  down,  with 
splendid  freedom  from  political  considerations,  by  Mar- 
shall saved  Burr's  life,  but  gave  rise  to  bitter  political 
attacks  upon  the  Chief  Justice,  and  renewed  a  popular 
demand  for  an  elective  judiciary  or  a  limited  term  of 
oj65ce. 

Jefferson  wrote  to  James  Wilkinson,  September  20, 
1807:^ 

'  "The  scenes  which  have  been  enacted  at  Richmond 
are  such  as  have  never  before  been  exhibited  in  any  country 
where  all  regard  to  public  character  has  not  yet  been  thrown 
off.  They  are  equivalent  to  a  proclamation  of  impunity 
to  every  traitorous  combination  which  may  be  formed  to 
destroy  the  Union.  .  .  .  However,  they  will  produce  an 
amendment  to  the  Constitution  which  keeping  the  judges 
independent  of  the  Executive  will  not  leave  them  so,  of 
the  Nation." 

And  again,  on  September  26, 1807,  to  William  Thompson: 

/"The  scenes  which  have  been  acting  at  Richmond  are 
sufficient  to  fill  us  with  alarm.  We  had  supposed  we 
possessed  fixed  law^s  to  guard  us  equally  against  treason  and 
oppression.  But  it  now  appears  we  have  no  law  but  the  will 
of  the  judge.  Never  will  chicanery  have  a  more  difficult 
task  than  has  been  now  accomplished  to  warp  the  text 
of  the  law  to  the  will  of  him  who  is  to  construe  it." 

In  1809,  there  occurred  in  the  United  States  Supreme 
Court  a  case  famous  for  its  counsel  —  Fletcher  v.  Peck 

on  August  19,  there  began  the  long  ten  days  of  forensic  argument,  resulting 
in  Marshall's  decision  that  Burr  could  not  be  found  guilty  on  the  e\-idence. 

Among  the  many  lawyers  who  attended  this  trial  were  Andrew  Jackson 
and  Washington  Irving. 

Trial  of  Aaron  Burr,  by  James  A.  Cabell,  in  N.  Y.  State  Bar  Assn. 
Proc,  Vol.  XXIII;  Decisive  Battles  of  the  Times,  by  Frederic  Trevor  Hill 
(1907). 

^  Writings  of  Thomas  Jeferson,  Vol.  IX. 


270  A  HISTORY  OF  THE  AMERICAN  BAR 

(6  Cranch,  87).^  This  case  arose  in  the  Massachusetts  Cir- 
cuit, and  was  first  argued  by  Luther  Martin,  against  John 
Quincy  Adams  and  Robert  G.  Harper. 

An  entry  in  J.  Q.  Adams'  Diary  records  that  the  case 
was  thought  by  the  Court  to  be  a  fictitious  one  —  an  in- 
teresting suggestion  in  view  of  the  fact  that  the  decision 
in  the  great  Dartmouth  College  Case,  ten  years  later,  was 
based  partly  on  this  case: 

"The  Court  met  at  the  usual  hour  (11  A.M.)  and  sat 
until  12  M.  Martin  continued  his  argument  until  that 
time,  and  then  adjourned  until  two.  I  went  to  the  capitol 
and  witnessed  the  inauguration  of  Mr.  Madison  as  Presi- 
dent of  the  United  States.  The  House  was  very  much 
crowded  and  its  appearance  very  magnificent.  .  .  .  The 
Court  had  adjourned  until  two  o'clock.  I  therefore  re- 
turned to  them  at  that  hour.  Mr.  Martin  closed  the 
argument.  March  7.  In  the  case  of  Fletcher  and  Peck,  he 
(the  Chief  Justice)  mentioned  to  Mr.  Cranch  and  Judge 
Livingston,  and  had  done  the  same  to  me  on  Saturday 
night  at  the  ball,  the  reluctance  of  the  Court  to  decide  the 
case  at  all,  as  it  appeared  manifestly  made  up  for  the  pur- 
pose of  getting  the  Court's  judgment  upon  all  the  points. 
And  although  they  have  given  some  decisions  in  such  cases, 
they  appear  not  disposed  to  do  so  now." 

1  The  case  involved  the  famous  Yazoo  Frauds  and  the  constitutionality 
of  a  statute  of  the  State  of  Georgia  of  1796,  voiding  certain  grants  of  land 
made  under  a  previous  Act  of  1795  on  the  ground  that  the  passage  of  the 
Act  of  1795  was  obtained  by  fraud  and  corruption  —  see  The  Yazoo  Land 
Companies,  by  Charles  H.  Haskins,  Amer.  Hist.  Ass.  Papers,  Vol.  V  (1891); 
James  Wilson  and  the  so-called  Yazoo  Fratids,  by  M.  C.  Klingelsmith,  U.  of 
P.  Law  Review,  Vol.  LVI  (1908);  Documents  of  Congress,  1809;  Niks 
Register,  Vol.  VI.  See  also  Brown  v.  Gilman,  4  Wheaton,  255;  Brown  v. 
Jackson,  7  Wheaton,  218. 

It  is  interesting  to  note  that  ten  years  previously  the  Massachusetts 
Supreme  Court  had  held  the  Georgia  statute  unconstitutional,  as  impairing 
the  obligation  of  contract  —  the  very  point  on  which  the  United  States 
Supreme  Court  decided  the  case.  See  Derby  v.  Blake,  cited,  October  9, 1799, 
in  the  Columbian  Centinel,  a  Boston  newspaper. 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         271 

The  second  argument '  in  18 10,  was  notable  for  the  fact 
that  Joseph  Story,  one  year  before  his  appointment  as 
Supreme  Court  Judge,  appeared  as  counsel  on  the  winning 
side,  in  place  of  Adams  (who  had  been  appointed  Minister 
to  Russia).  A  complimentary  comment  on  the  counsel  is 
to  be  found  in  Johnson's  dissenting  opinion: 

"I  have  been  very  unwilling  to  proceed  to  the  decision 
of  this  cause  at  all.  It  appears  to  me  to  bear  strong  evidence 
upon  the  face  of  it  of  being  a  mere  feigned  case.  It  is  our 
duty  to  decide  on  the  rights  but  not  in  a  speculation  of 
parties.  My  confidence  however  in  the  respectable  gentle- 
men who  have  been  engaged  for  the  parties  has  induced  me 
to  abandon  my  scruples  in  the  beHef  that  they  would  never 
consent  to  impose  a  mere  feigned  case  upon  this  court." 

In  1 81 1,  occurred  a  case,  interesting  as  one  of  the 
first  involving  the  title  to  property  under  the  Louisiana 
Purchase  of  1803  —  Livmgston  v.  Jefferson  (Federal  Cases, 
No.  841 1).  This  was  an  action  known  as  the  ''Batture 
Case,"  brought  by  Edward  Livingston  agamst  Thomas 
Jefferson  for  alleged  trespass  committed  while  President, 
in  removing  Livingston  from  property  made  by  accretion 
of  soil,  known  as  the  ''batture,"  on  the  river  front  in  New 
Orleans.  A  great  controversy  raged  for  years  over  this 
matter,  in  the  courts,  the  newspapers  and  the  law  maga- 
zines. Its  permanent  effect  on  the  jurisprudence  of  the 
country  arose,  however,  from  the  poHtical  complexion  of 
the  case. 

1  Fletcher  v.  Peck,  at  its  first  hearing  went  off  on  a  point  of  jurisdiction; 
see  the  following  entry  in  J.  Q.  Adams'  Diary: 

"March  11,  1809.  This  morning  the  Chief  Justice  read  a  written  opinion 
on  the  case  of  Fletcher  and  Peck.  The  judgment  in  the  Circuit  Court  is  re- 
versed for  a  defect  in  the  pleadings.  With  regard  to  the  merits  of  the 
case,  the  Chief  Justice  added  verbally  that  circumstanced  as  the  Court  are, 
only  five  judges  attending,  there  were  difficulties  which  would  have  pre- 
vented them  from  giving  any  opinion  at  this  term  had  the  pleadings  been 
correct." 


272  A  HISTORY  OF  THE  AMERICAN  BAR 

While  it  was  pending,  William  Gushing,  Judge  of  the 
Supreme  Court,  died.  The  Court  was  Federalist  in  its 
poHtics;  and  Jefferson,  whose  personal  fortune  was  at 
stake  in  the  Livingston  case,  urged  upon  President  Madi- 
son, with  all  the  energy  at  his  command,  the  extreme 
necessity  for  the  appointment  of  a  strong  Republican  to 
fill  the  vacant  position.  Jefferson's  antipathy  to  Marshall 
and  his  distrust  of  his  political  motives  led  him  to  conceive 
that  Marshall  would  take  revenge  by  finding  against  him 
if  the  case  came  before  him.  Accordingly,  he  addressed 
urgent  letters  to  Madison  and  to  all  his  cabinet,  of  which 
the  following  may  be  cited. 

Writing  to  Albert  Gallatin,  September  27,  1810,  he 
said:^ 

"What  the  issue  of  the  case  ought  to  be,  no  unbiased 
man  can  doubt.  What  it  will  be,  no  one  can  tell.  The 
Judge's  inveteracy  is  profound  and  his  mind  of  that  gloomy 
malignity  which  will  never  let  him  forego  the  opportunity 
of  satiating  it  on  a  victim. 

"His  decision,  his  instructions  to  a  jury,  his  allowances 
and  disallowances  and  garbHngs  of  evidence  must  all  be 
subjects  of  appeal.  I  consider  that  as  my  only  chance  of 
saving  my  fortune  from  entire  wreck.  And  to  whom  is 
my  appeal?  From  the  Judge  in  Burr's  case  to  himself  and 
his  Associate  Judges  in  the  case  of  Marbury  v.  Madison  — 
Not  exactly  however.  I  observe  old  Gushing  is  dead.  At 
length  then  we  have  a  chance  of  getting  a  RepubHcan 
majority  in  the  Supreme  Judiciary.  For  ten  years  that 
branch  braved  the  spirit  and  will  of  the  Nation  after  the 
Nation  has  manifested  its  will  by  a  complete  reform  in 
every  branch  depending  on  them.  The  event  is  a  fortu- 
nate one  and  so  timed  as  to  be  a  Godsend  to  me.  I  am 
sure  its  importance  to  the  Nation  will  be  felt  and  the 
occasion  employed  to  complete  the  great  operation  they 
have  so  long  been  executing  by  the  appointment  of  a 
decided    Republican    with    nothing    equivocal    about    it. 

*  Writings  of  Thomas  Jefferson,  Vol.  IX. 


THE  FEDER/\L  BAR  AND  LAW,   1789-1815         273 

But  who  will  it  be?  The  misfortune  of  [Barnabas]  Bidwell 
removes  an  able  man  from  the  competition.  Can  any  other 
bring  equal  qualifications  to  those  of  [Levi]  Lincoln? 

"I  know  he  was  not  deemed  a  profound  common  lawyer; 
but  was  there  ever  a  profound  common  lawyer  known  in 
one  of  the  Eastern  States?  There  never  was  nor  never 
can  be  one  from  these  States.  The  basis  of  their  law  is 
neither  common  nor  civil;  it  is  an  original,  if  any  compound 
can  be  so  called.  Its  foundation  seems  to  have  been  laid 
in  the  spirit  and  principles  of  Jewish  law,  incorporated 
with  some  words  and  phrases  of  common  law  and  an  abun- 
dance of  notions  of  their  own.  This  makes  an  amalgam 
sui  generis;  and  it  is  well  known  that  a  man  first  thoroughly 
initiated  into  the  principles  of  one  system  of  law  can  never 
become  pure  and  sound  in  any  other.  Lord  Mansfield 
was  a  splendid  proof  of  this.  Therefore  I  say  there  never 
was  nor  never  can  be  a  profound  common  lawyer  from  those 
States.  [James]  Sullivan  had  the  reputation  of  pre-emi- 
nence as  a  common  lawyer  —  but  we  have  his  history 
of  Land  Titles  which  gives  us  his  measure.  Mr.  Lincoln 
is,  I  believe,  considered  as  learned  in  their  laws  as  any 
one  they  have.  Federalists  say  that  Parsons  is  better; 
but  the  criticalness  of  the  present  nomination  puts  him 
out  of  the  question." 

To  Madison,  he  wrote,  October  10,  1810: 

"[George]  Blake  calls  himself  a  republican  but  never  was 
one  at  heart.  His  treachery  to  us  under  the  embargo 
should  put  him  by  forever.  [Joseph]  Story  and  [Ezekiel] 
Bacon  are  exactly  the  men  who  deserted  us  on  that  meas- 
ure and  carried  ofT  the  majority.  The  former  unquestion- 
ably a  tory  and  both  are  too  young.  I  say  nothing  of 
professing  federalists.  Granger  and  Morton  have  both  been 
interested  in  Yazooism.  The  former  however  has  been 
clear  of  it." 

All  the  lawyers  mentioned  in  these  letters  were  Repub- 
licans from  Massachusetts  (that  being  the  State  from 
which  Gushing  had  been  appointed). 

Madison   was   evidently   impressed   with   the   appeals; 


274  A  HISTORY  OF  THE  AMERICAN  BAR 

for,  after  offering  the  vacant  judgeship  to  Levi  Lincoln 
and  to  John  Quincy  Adams  (both  of  whom  declined),  he 
finally  appointed  Joseph  Story,  then  a  yomig  man  of 
thirty-two,  and  a  strong  Republican.  This  appointment 
in  its  effect  upon  the  future  of  American  jurisprudence  can 
be  reckoned  only  second  in  importance  to  that  of  John 
Marshall.  The  appointment  in  its  poUtical  aspect  proved, 
however,  a  sore  disappointment  to  Jefferson;  for  Story, 
soon  after  his  accession  to  the  Bench,  became  a  staunch 
supporter  of  Marshall's  strongly  Federal  doctrines. 

When  the  "Batture  Case"  was  finally  argued  in  the 
United  States  District  Court  in  1811,  the  plaintiff's  counsel 
w^as  John  Wickham,  while  George  Hay,  William  Wirt  and 
Littleton  Waller  Tazewell,  appeared  for  Jefferson;  Dis- 
trict Judge  John  Tyler  (father  of  President  Tyler)  and 
Chief  Justice  Marshall  presided;  and  Tyler  gave  the 
opinion,  finding  for  Jefferson  on  a  point  of  jurisdiction. 

The  following  extract  throws  a  quaint  light  upon  the 
lawyers  of  the  day: 

"WTiile  I  freely  acknowledge  how  much  I  was  pleased 
with  the  ingenuity  and  eloquence  of  the  plaintiff's  counsel, 
I  cannot  do  so  much  injustice  to  plain  truth  as  to  say  that 
any  conviction  was  wrought  on  my  mind  of  the  sound- 
ness of  the  arguments  they  exhibited,  in  a  legal  acceptation. 
It  is  the  happy  talent  of  some  professional  gentlemen, 
and  particularly  of  the  plaintiff's  counsel,  often  to  make 
the  worse  appear  the  better  excuse.  .  .  .  These  arguments 
and  this  eloquence,  however,  have  been  met  by  an  Hercu- 
lean strength  of  forensic  ability  which  I  take  pride  in  saying 
sheds  lustre  over  the  Bar  of  Virginia."  ^ 

1  See  also  Livingston  v.  Dorgenois,  7  Cranch,  577  (1813). 

Livingston  finally  lost  his  case  in  the  Louisiana  Supreme  Court,  see 
Morgan  v.  Livingston,  6  Martin,  19  (1819). 

And  see  Randall's  Life  of  Jejferson,  Vol.  Ill;  Letters  and  Times  of  the 
Tylers,  by  Lyon  G.  Tyler;  Opinions  of  DuPonceau,  Rawle,  Ingersoll,  E.  Tilgk- 
man  and  W.  Lewis  in  behalf  of  Edward  Livingston,  in  Hall's  American  Law 


THE  FEDERAL  BAR  AND   LAW,   1 789-181 5  275 

Between  1789  and  181 2,  it  may  be  said  that  the  growth 
of  American  law  was  largely  due  to  the  lawyers  and  judges 
who  moulded  it.  In  181 2,  there  arose,  however,  a  new 
factor  to  which  may  be  attributed  not  only  the  rapid  de- 
velopment of  law,  but  also  the  far  more  important  develop- 
ment of  the  legal  profession.  It  is  a  singular  fact  that  the 
War  of  181 2,  while  an  event  of  slight  influence  on  the 
political  history  of  this  country,  had  an  incalculable  effect 
upon  American  legal  and  economic  history.  To  the  eco- 
nomic conditions  to  which  it  gave  rise,  may  be  attributed 
the  start  of  many  of  the  branches  of  modern  law  and  the 
consequent  enhancement  of  the  practise,  importance  and 
scope  of  the  legal  profession. 

Journal,  Vol.  II  (1809);  Proceedings  of  the  United  States  Government  in 
maintaining  the  Public  Rights  to  the  Beach  of  the  Mississippi  adjacent  to  New 
Orleans  against  the  intrusion  of  Edward  Livingston,  by  Thomas  Jefferson 
(1812),  in  Hall's  American  Law  Journal,  Vol.  V  (1816). 

An  answer  to  Mr.  Jejferson's  Justification  of  his  conduct  in  the  case  of  the 
New  Orleans  Batture  by  Edward  Livingston  (1813),  in  Hall's  American  Law 
Journal,  Vol.  V  (1816). 

On  May  25,  1810,  Jefferson  wrote  to  Madison: 

"  In  speaking  of  Livingston's  suit  I  omitted  to  observe  that  it  is  a  little 
doubted  that  his  knowledge  of  Marshall's  character  has  induced  him  to 
bring  this  action.  His  twistifications  in  the  case  of  Marbury,  in  that  of 
Burr  and  the  late  Yazoo  case  show  how  dexterously  he  can  reconcile  law  to 
his  personal  biases;  and  nobody  seems  to  doubt  that  he  is  prepared  to  decide 
that  Livingston's  right  to  the  batture  is  unquestionable." 

Marshall  wrote  to  Story,  July  13,  1S21: 

"For  Mr.  Jefferson's  opinion  as  respects  this  department,  it  is  not  difl5- 
cult  to  assign  the  cause.  He  is  among  the  most  ambitious  and  I  suspect 
among  the  most  unforgiving  of  men.  That  in  a  free  country  with  a  written 
Constitution  any  intelligent  man  could  wish  a  dependent  judiciary  or  should 
think  that  the  Constitution  is  not  a  law  for  the  Court  as  well  as  the  Legisla- 
ture would  astonish  me  if  I  had  not  learnt  from  observation  that  with  many 
men  the  Judgment  is  completely  controlled  by  the  passions.  The  case  of  the 
mandamus  (Marbury  v.  Madison)  may  be  the  cloak,  but  the  batture  is 
recollected  with  still  more  resentment." 

Sec  Letters  of  Marshall  in  Mass.  Hist.  Soc.  Proc,  2d  series.  Vol.  XVI 
(iQoo-igoi). 


276  A  HISTORY  OF  THE  AMERICAN  BAR 

The  impress  of  the  War  of  i8 12  on  legal  history  is  mark- 
edly seen  in  the  following  directions:  first,  in  giving  rise 
to  a  vast  number  of  decisions  on  prize  and  admiralty  law; 
second,  in  the  growth  of  manufacturing  corporations  and 
the  rise  of  the  important  branch  of  the  law  relating  thereto; 
third,  in  turning  commercial  and  industrial  efforts  from 
shipping  and  agriculture  to  manufactures  and  inventions, 
and  consequently  in  establishing  a  system  of  patent  law; 
fourth,  in  necessitating  the  development  of  internal  means 
of  communication  —  the  coasting  trade  being  ruined  by 
the  British  blockade  —  and  thus  promoting  the  construc- 
tion of  canals,  multipl3ang  turnpikes,  and  preparing  the 
people  to  demand  the  swifter  means  of  transportation  by 
steam  railroads;  fifth,  in  shutting  off  the  country  from  its 
supply  of  English  law  reports  and  books,  and  thus  throw- 
ing the  lawyers  and  the  courts  upon  strictly  American 
resources  in  the  solution  of  new  legal  problems. 

The  first  great  development  in  American  law  was 
naturally  in  that  branch  known  as  maritime,  admiralty 
and  prize  law;  and  to  the  vast  growth  in  this  class  of  cases 
the  American  lawyer  of  the  period  owed  most  of  his  pros- 
perity. The  troubles  with  the  French  Directory,  the 
Mediterranean  pirates  of  Tripoli,  the  Berlin  and  Milan 
Decrees  of  Napoleon  in  1806-1807;  the  retaliatory  Orders 
in  Council  of  the  British  Ministry,  the  Embargo  and  Non- 
Intercourse  Acts  of  Thomas  Jefferson,  and  finally,  the 
War  of  18 1 2,  —  all  had  created  conditions  vital  to  the 
pockets  of  the  wealthy  merchants  and  shipowners  of 
the  United  States. 

"The  Embargo  had  fallen  like  a  withering  curse  upon 
New  England.  Under  its  desolating  blight,  her  ships 
rotted  at  their  wharves,  her  business  stagnated,  her  in- 
dustries were  paralyzed,  and  her  laboring  population  was 
thrown  out  of  work.     Ruin  confronted  her  merchants; 


THE  FEDERAL  BAR  AND   LAW,   1789-1815         277 

poverty   and   starvation   stared   her   workingmen   in   the 
face."^ 

At  first,  shipowners  had  looked  to  the  courts  for  relief 
against  the  obnoxious  laws.  But  in  1808,  Judge  John 
Davis  had  disappointed  their  hopes  by  his  decision  in  the 
case  of  U.  S.  v.  Brigantine  William,  in  the  United  States 
District  Court  in  Massachusetts,  holding  the  Embargo 
Act  constitutional,  notwithstanding  the  fact  that  Samuel 
Dexter,  the  leader  of  the  Massachusetts  Bar,  had  argued 
to  the  contrary,  and  Theophilus  Parsons,  the  great  Chief 
Justice  of  Massachusetts  had  given  an  extra-judicial 
opinion  as  to  the  unconstitutionality  of  the  obnoxious 

statute.^ 

Despairing  of  any  remedy  in  the  courts,  the  shipowners 
adjusted  themselves  to  new  conditions,  and  began  to  in- 

1  Life  and  Times  of  George  Cabot,  by  Henry  Cabot  Lodge  (1877). 

*  See  report  of  the  case  in  Hall's  American  Law  Journal,  Vol.  11  (1809). 

John  Qulncy  Adams  wrote: 

"I  wrote  to  Mr.  Bacon  that  on  the  question  of  the  embargo  there  was 
in  Massachusetts  a  Judiciary  of  which  he  must  think,  what  I  could  not 
say.  It  was  with  a  repugnance,  I  could  not  express,  that  I  saw  a  desperate 
party  leader  in  the  Chief  Justice  of  the  Commonwealth.  It  was  from  him 
alone  that  the  pretence  of  the  unconstitutionality  of  the  embargo  derived 
any  countenance.  Even  Mr.  Pickering  had  not  ventured  to  start  that  idea. 
It  was  the  stimulus  to  the  people  of  forcible  resistance  against  it.  It  was  a 
gigantic  stride  towards  a  dissolution  of  the  Union.  Mr.  Parsons  not  only 
broached  the  opinion,  but  very  extra-judicially  made  no  secret  of  it,  upon 
the  exchange  and  at  insurance  offices.  Even  the  veneration  entertained  by 
the  District  Judge  for  his  personal  fame  as  a  lawyer,  was  not  exempted  from 
the  operation  of  its  influence.  Mr.  Dexter  argued  against  the  constitution- 
ality of  the  embargo,  as  a  lawyer  for  his  client.  But  there  is  one  decisive 
proof  that  Mr.  Dexter  had  no  confidence  in  this  argument.  The  District 
Judge  to  whom  he  addressed  it  and  who  decided  against  him  was  a  Federal- 
ist. Four  of  the  six  Judges  of  the  Supreme  Court  of  the  United  States,  Mar- 
shall, Cushing,  Chase  and  Washington,  were  Federalists.  Yet  Mr.  Dexter 
acquiesced  in  the  decision  of  the  District  Judge  and  did  not  take  an  appeal 
to  the  Judge  of  the  Circuit  Court,  Cushing." 

See  Documents  Relating  to  New  England  Federalism,  by  Henry  Adams 
(1870). 


278  A  HISTORY  OF  THE  AMERICAN  BAR 

dulge  in  private  warfare,  disregarding  all  the  various  acts, 
orders  in  council  and  decrees;  and  privateering  became  a 
commercial  business.  "The  merchant  became  marauder. 
From  every  port  of  the  New  England  States,  ships  which 
had  lain  rotting  and  warping  in  the  sun  issued,  new  rigged 
as  privateers,  now  returning  with  prizes,  now  captured  by 
the  enemy."  ^ 

The  early  State  and  Federal  reports  are  flooded,  there- 
fore, with  cases  not  only  in  the  Federal  admiralty  courts, 
but  also  in  the  State  courts,  construing  the  policies  of 
marine  insurance  companies,  and  adjusting  the  rights  of 
captors,  neutrals,  belligerents,  persons  trading  under 
licenses  and  privateering  under  letters  of  marque  and  re- 
prisal or  otherwise.  From  the  large  proportion  of  cases  in 
the  law  reports  involving  these  marine  insurance  com- 
panies, it  would  seem  that  the  companies  seldom  paid  a 
claim,  without  a  contest  at  law. 

The  most  successful  and  wealthiest  lawyers  at  this 
time  were  those  with  a  maritime  practise;  and  as  Horace 
Binney  wrote  of  this  period  (1807-1817): 

"The  stoppings,  seizures,  takings,  sequestrations,  con- 
demnations, all  of  a  novel  kind,  unlike  anything  that  had 
pre\dously  occurred  in  the  history  of  maritime  comraerce 
—  the  consequence  of  new  principles  introduced  offensively 
and  defensively  by  the  belhgerent  powers,  gave  an  unpar- 
alleled harvest  to  the  Bar  of  Philadelphia.  No  persons  are 
bound  to  speak  better  of  Bonaparte  than  the  Bar  of  this 

city. 

*'He  was,  it  is  true,  a  great  buccaneer  and  the  British 
followed  his  example  with  spirit  and  fidelity;  but  what 
distinguished  hun  and  his  imitators  from  the  pirates  of 
former  days  was  the  feHcitous  manner  in  which  he  first 
and  they  afterwards,  resolved  every  piracy  into  some 
principle  of  the  laws  of  nations.  Had  he  stolen  and  called 
it  a  theft,  not  a  single  law  suit  could  have  grown  out  of 
1  Life  and  Letters  of  Joseph  Story,  by  W.  W.  Story. 


THE  FEDERAL  BAR  AND  LAW,   1 789-181 5  279 

it.  The  underwriters  must  have  paid.  .  .  .  But  he  stole 
from  neutrals  and  called  it  lawful  prize.  ...  He  always 
gave  a  reason,  and  kept  the  world  of  law  inquiring  how 
one  of  his  acts  and  his  reasons  for  it  bore  upon  the  pohcy 
of  insurance." 

To  deal  with  this  situation,  a  brand  new  body  of  law  had 
to  be  formulated  —  and  it  was  the  good  fortune  of  the 
United  States  that  it  possessed  a  judge,  capable  of  per- 
forming this  task,  in  Joseph  Story,  whose  decisions  prac- 
tically made  the  prize  and  admiralty  law  for  this  country, 
just  as  the  decisions  of  Sir  William  Scott  [Lord  Stowell] 
were  contemporaneously  establishing  such  law  for  Great 
Britain. 

When  Scott  was  appointed,  in  1798,  in  England,  there 
were  no  admiralty  reports;  and  by  181 1,  Robinson's  Re- 
ports of  Sto well's  decisions  were  practically  the  sole  EngUsh 
authority,  the  old  treatises  of  Welwood,  Malloy,  Malynes 
and  Marius  being  imperfect  and  inaccurate.  In  the  United 
States,  all  that  Story  had  to  go  upon,  were  a  few  decisions 
in  the  first  five  volumes  of  Cranch,  a  small  volume  of  Bee's 
Reports  (So.  Car.),  Mariott's  Admiralty  Forms,  and  a  small 
collection  of  precedents  accompanying  Hall's  translation 
of  Gierke's  Praxis;  hence  cut  off  by  the  war  from  the  benefit 
of  Lord  Stowell's  contemporary  decisions,  Story  construed 
admiralty  law  practically  unaided  and  alone. 

The  first  prize  case  of  prime  importance  in  the  Supreme 
Court  was  Rose  v.  Eimely  (4  Cranch,  241),  in  1808,  in  which 
ten  counsel  took  part:  Charles  Lee,  R.  G.  Harper,  S.  Chase, 
Jr.,  A.  J.  Dallas,  W.  Rawle,  Ingersoll,  and  Drayton  appear- 
ing against  DuPonceau,  E.  Tilghman,  and  Luther  ALartin. 
Of  this  case,  Story  wrote,  February  16,  1S08  (before  his 
appointment  to  the  Bench): 

"Here  I  am  in  the  wilderness  of  Washington.  .  .  .  The 
scene  of  my  greatest  amusement  as  well  as  instruction 


28o  A  HISTORY  OF  THE  AMERICAN  BAR  " 

in  the  Supreme  Court.  I  daily  spend  several  hours  there. 
One  cause  only  has  been  argued  since  I  came  here,  and  that 
was  concluded  to-day  after  occupying  a  space  of  nine  days. 
Ahnost  all  the  eminent  counsel  of  the  adjoining  States 
were  engaged  in  it." 

Seven  years  later,  in  1815,  Judge  Story  delivered  his 
celebrated  opinion,  in  the  Circuit  Court,  in  De  Lovio  v.  Boit 
(2  Gall.  398)  —  one  of  the  most  elaborate  in  the  annals  of 
the  law,  exploring  and  stating  at  length  the  history  and 
extent  of  admiralty  jurisdiction  —  a  treatise  in  itself  —  an 
opinion  which,  in  the  words  of  its  opponents,  "sucked  up 
jurisdiction  like  a  sponge." 

In  the  same  year,  the  Supreme  Court  decided  the  famous 
case  of  The  Nereide  (9  Cranch,  388),  in  which  Thomas 
Addis  Emmet  of  New  York  ^  made  his  renowned  argument, 
with  J.  Ogden  Hoffman,  against  Alexander  J.  Dallas  and 
William  Pinkney.  The  latter,  though  unsuccessful,  so  daz- 
zled the  Court  with  his  oratory  that  Marshall  in  his  opinion 
felt  obliged  to  advert  to  it: 

"With  a  pencil  dipped  in  the  most  vivid  colors  and 
guided  by  the  hand  of  a  master,  a  splendid  portrait  has 
been  drawn  exhibiting  the  vessel  and  her  freighter,  as 
forming  a  single  figure,  composed  of  the  most  discordant 
materials;  and  so  exquisite  was  the  skill  of  the  artist, 
so  dazzling  the  garb  in  which  the  figure  was  presented, 
that  it  required  the  exercise  of  the  cold,  investigating 
faculty  which  ought  always  to  belong  to  those  who  sit  on 
this  bench,  to  discover  its  only  imperfection  —  its  want  of 
resemblance." 

1  Thomas  Addis  Emmet,  was  at  this  time  the  leader  of  the  New  York 
Bar  —  born  in  1765  in  Ireland,  a  student  in  the  Temple  in  London,  he  arrived 
in  New  York  in  1804,  and  died  in  1827. 

See  especially  Story's  description  of  Emmet  in  Story's  Life  and  Letters, 

Vol.  I. 

See  Memoirs  of  Thomas  Addis  Emmet,  by  Charles  G.  Haines  (1829); 
and  Memoir,  in  Story's  Miscellaneous  Works. 


THE  FEDERAL   BAR  AND   LAW,   1 789-181 5  281 

Judge  Story  (who  dissented  from  Marshall's  opinion) 
also  wrote  of  this  argument,  February  22,  1815:  ^ 

"Mr.  Pinkney  and  Mr.  Emmet  have  measured  swords 
in  a  late  cause.  I  am  satisfied  that  Mr.  Pinkney  towers 
above  all  his  competitors.  Mr.  Emmet  is  the  favorite 
counsellor  of  New  York,  but  Pinkney's  superiority  to  my 
mind  was  unquestionable.  I  was  glad,  however,  to  have 
his  emulation  excited  by  a  new  trial.  It  invigorated  his 
exertion,  and  he  poured  upon  us  a  torrent  of  splendid 
eloquence." 

A  most  vivid  contemporary  picture  of  the  Supreme  Court 
judges  of  that  day,  sitting  in  their  robes  and  powdered 
hair,  and  of  the  wonderful  oratory  of  the  great  counsel 
practising  before  them,  is  given  in  two  letters  from  George 
Ticknor  in  February,  181 5,  describing  the  argument  of 
the  case  of  Tlie  Frances  (9  Cranch,  183)  and  of  The  Nereide: 

"I  passed  the  whole  of  this  morning  in  the  Supreme 
Court.  The  room  in  which  the  Judges  are  compelled 
temporarily  to  sit  is,  like  everything  else  that  is  official, 
uncomfortable  and  unfit  for  the  purposes  for  which  it  is 
used.  They  sat  —  I  thought  inconveniently  —  at  the 
upper  end;  but,  as  they  were  all  dressed  in  flowing  black 
robes  and  were  fully  powdered,  they  looked  dignified. 
Judge  Marshall  is  such  as  I  described  him  to  you  in  Rich- 
mond; Judge  Washington  is  a  little,  sharp-faced  gentle- 
man, with  only  one  eye,  and  a  profusion  of  snulT  distributed 
over  his  face;  and  Judge  Duval  very  Uke  the  late  Vice- 
President.  The  Court  was  opened  at  half  past  eleven, 
and  Judge  Livingston  and  Judge  Marshall  read  written 
opinions  on  two  causes. 

''After  a  few  moments'  pause,  they  proceeded  to  a  case 

1  Feb.  27,  1829,  Story  wrote  to  W.  Sampson: 

"Mr.  Emmet  was  a  new  and  untried  opponent  and  brought  with  him  the 
ample  honors  gained  at  one  of  the  most  distinguished  Bars  in  the  Union. 
His  speech  was  greatly  admired  for  its  force  and  fervor,  its  variety  of  re- 
search and  its  touching  eloquence.  It  placed  him  at  once  by  universal  con- 
sent in  the  first  rank  of  .\merican  advocates  —  but  not  before  Mr.  Pinkney." 


282  A  HISTORY  OF  THE  AMERICAN  BAR 

in  which  Dexter,  Pinkney,  and  Emmet  were  counsel. 
It  was  a  high  treat,  I  assure  you,  to  hear  these  three  law- 
yers in  one  cause.  Pinkney  opened  it  as  junior  counsel 
to  Emmet;  and  it  was  some  time  before  I  was  so  far 
reconciled  to  his  manner  as  to  be  able  to  attend  properly 
to  his  argument.  His  person,  dress,  and  style  of  speaking 
are  so  different  from  anything  which  I  ever  saw  before, 
that  I  despair  of  being  able  to  give  you  an  idea  of  hrni 
by  description  or  comparison. 

"You  must  imagine,  if  you  can,  a  man  formed  on  nature's 
most  liberal  scale,  who,  at  the  age  of  fifty,  is  possessed 
with  the  ambition  of  being  a  pretty  fellow,  wears  corsets 
to  diminish  his  bulk,  uses  cosmetics,  as  he  told  Mrs.  Gore, 
to  smooth  and  soften  a  skin  growing  somewhat  wrinkled 
and  rigid  with  age,  and  dresses  in  a  style  which  would  be 
thought  foppish  in  a  much  younger  man.  You  _  must 
imagine  such  a  man  standing  before  the  gravest  tribunal 
in  the  land,  and  engaged  in  causes  of  the  deepest  moment; 
but  still  apparently  thinking  how  he  can  declaim  like  a 
practised  rhetorician  in  the  London  Cockpit,  which  he 
used  to  frequent.  Yet  you  must,  at  the  same  tinie,  im- 
agine his  declamation  to  be  chaste  and  precise  in  its  lan- 
guage, and  cogent,  logical  and  learned  in  its  argument, 
free  from  the  artifice  and  affectation  of  his  manner,  and, 
in  short,  opposite  to  what  you  might  fairly  have  expected 
from  his  first  appearance  and  tones.  And  when  you  have 
compounded  these  inconsistencies  in  your  imagination, 
and  united  quahties  which  on  common  occasions  nature 
seems  to  hold  asunder,  you  will,  perhaps,  begin  to  form 
some  idea  of  what  Mr.  Pinkney  is. 

"He  spoke  about  an  hour  and  was  followed  by  Mr. 
Dexter,  who,  with  that  cold  severity  which  seems  peculiarly 
his  own,  alluded  to  the  circumstances  of  his  being  left 
alone  (his  coadjutor  not  having  come)  to  meet  two  such 
antagonists;  then  went  on  to  admit  all  that  Mr.  Pinkney 
had  said,  and  to  show  that  it  had  nothing  to  do  with  the 
case  in  hand,  and  finally  concluded  by  setting  up  an  acute 
and,  as  I  supposed  it  will  prove,  a  successful  defence. 

"Mr.  Emmet  closed  the  cause  in  a  style  different  from 
either  of  his  predecessors.     He  is  more  advanced  in  life 


THE  FEDER.VL  BAR  AND  LAW,   1 789-181 5        283 

than  they  are;  but  he  is  yet  older  in  sorrows  than  in  years. 
There  is  an  appearance  of  premature  age  in  his  person, 
and  of  a  settled  melancholy  in  his  countenance,  which 
may  be  an  index  to  all  that  we  know  of  himself  and  his 
family.  At  any  rate,  it  wins  your  interest  before  he  begins 
to  speak. 

"He  was  well  possessed  of  his  cause,  and  spoke  with 
a  heartiness  which  showed  that  he  desired  to  serve  his 
client  rather  than  to  display  himself.  He  was  more  bold 
and  free  in  his  language,  yet  perhaps  equally  exact  and 
perspicuous;  and  if  Mr.  Pinkney  was  more  formally 
logical,  and  Mr.  Dexter  more  coldly  cogent,  Mr.  Emmet 
was  more  persuasive. 

"When  he  had  finished,  I  was  surprised  to  find  that 
he  had  interested  me  so  much  that,  if  he  had  not  stopped, 
I  should  have  lost  my  dinner." 

"February  21,  1815. 

"I  was  in  Court  all  this  morning.  The  session  was 
opened  by  Judge  Story  and  the  Chief  Justice,  who  read 
elaborate  opinions.  During  this  time  Mr.  Pinkney  was 
very  restless,  frequently  moved  his  seat,  and,  when  sitting, 
showed  by  the  convulsive  twitches  of  his  face  how  anx- 
ious he  was  to  come  to  the  conflict.  At  last  the  Judges 
ceased  to  read,  and  he  sprang  into  the  arena  like  a  lion 
who  had  been  loosed  by  his  keepers  on  the  gladiator  that 
awaited  him. 

"The  display  was  brilUant.  Notwithstanding  the  pre- 
tension and  vehemence  of  his  manner,  —  though  he  treated 
Mr.  Emmet,  for  whom  I  had  been  much  interested  yes- 
terday, with  somewhat  coarse  contempt,  —  in  short, 
notwithstanding  there  was  in  his  speech  great  proof  of  pre- 
sumption and  affectation;  yet,  by  the  force  of  eloquence, 
logic,  and  legal  learning,  by  the  display  of  naked  talent, 
he  made  his  way  over  my  prejudices  and  good  feelings 
to  my  admiration  and,  I  had  almost  said,  to  my  respect. 
He  left  his  rival  far  behind  him;  he  left  behind  him,  it 
seemed  to  me  at  the  moment,  all  the  public  speaking  I 
had  ever  heard.  ...  It  is,  however,  in  vain  to  compare 
him  with  anybody  or  everybody  whom  we  have  been  in 


284  A  HISTORY  OF  THE  AMERICAN  BAR 

the  habit  of  hearing,  for  he  is  unlike,  and,  I  suspect,  above 
them  all. 

"He  spoke  about  three  hours  and  a  half,  and  when  he 
sat  down,  Emmet  rose  very  gravely.  'The  gentleman,' 
said  the  grand  Irishman,  in  a  tone  of  repressed  feeling 
which  went  to  my  heart,  —  '  the  gentleman  yesterday 
announced  to  the  court  his  purpose  to  show  that  I  was 
mistaken  in  every  statement  of  facts  and  every  conclusion 
of  law  which  I  had  laid  before  it.  Of  his  success  to-day 
the  court  alone  have  a  right  to  judge;  but  I  must  be  per- 
mitted to  say  that,  in  my  estimation,  the  manner  of  an- 
nouncing his  threat  of  yesterday,  and  of  attempting  to 
fulfil  it  to-day,  was  not  very  courteous  to  a  stranger,  an 
equal,  and  one  who  is  so  truly  inclined  to  honor  his  talents 
and  learning.  It  is  a  manner  which  I  am  persuaded  he 
did  not  learn  in  the  poHte  circles  in  Europe,  to  which  he 
referred,  and  which  I  sincerely  wish  he  had  forgotten  there, 
wherever  he  may  have  learnt  it.' 

"Mr.  Pinkney  replied  in  a  few wordsof  cold  andinefficient 
explanation,  which  only  made  me  think  yet  less  well  of 
him,  and  impelled  me  to  feel  almost  sorry  that  I  had  been 
obUged  so  much  to  admire  his  high  talents  and  success." 

To  meet  the  second  set  of  conditions  produced  by  the 
war  —  the  rapid  growth  of  business  and  manufacturing 
corporations  —  the  law  had  few  modern  precedents  or 
established  rules. 

The  fundamental  distinction  between  corporations,  pub- 
lic and  private,  had  been  nowhere  mentioned  by  Black- 
stone.  Kyd's  Corporations,  in  1793,  then  practically  the 
only  book  on  the  subject,  related  almost  entirely  to  muni- 
cipal corporations.  In  the  United  States,  prior  to  1800, 
there  had  been  few  cases  involving  corporations.  Kirby's 
Reports  (1789)  contains  only  four  such  cases,  one  of  an 
ecclesiastical  society  and  three  of  municipal  corporations; 
Root's  Reports  (1798),  containing  the  earliest  Connecticut 
cases,  has  one  case  of  a  church  corporation.  Harris  and 
McHenry's  Reports  in  Maryland  (1809),   containing   the 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         285 

earliest  American  cases,  have  one  church  corporation  case 
in  1796,  and  one  private  corporation  case  in  1799. 

From  1790  to  1800,  the  Supreme  Court  of  the  United 
States  had  only  a  single  corporation  case  before  it  —  Bank 
of  North  America  v.  Vardon  (2  Dallas,  78),  in  1790.  Dur- 
ing the  Colonial  Governments  before  1776,  there  were  but 
six  corporations  of  strictly  American  origin.^  After  the 
Revolution  about  two  hundred  charters  were  granted  prior 
to  1800,  mostly  for  banks,  insurance,  bridges  and  roads;  but 
the  only  States  to  grant  charters  to  any  manufacturing 
corporations  were  Massachusetts  which  incorporated  three; 
New  York,  three;  Connecticut,  Kentucky,  and  New  Jersey, 
each  one.^ 

^  These  were  as  follows:  The  New  York  Company  for  Settling  a  Fishery 
in  these  parts  (1675);  T^he  Free  Society  of  Traders,  in  Pennsylvania  (1682); 
The  New  London  Society  United  for  Trade  and  Commerce,  in  Connecticut 
(1723);  The  Union  Wharf  Company,  in  New  Haven  (1760);  The  Phila- 
delphia Contributionship  for  the  Insuring  of  Houses  from  Loss  by  Fire  (1768); 
The  Proprietors  of  Boston  Pier  of  the  Long  Wharf  in  the  Town  of  Boston  in 
New  England  (1772). 

Pennsylvania  also  chartered  in  1759  what  was  in  effect  a  life  insurance 
company,  The  Corporation  for  the  Relief  of  Poor  and  Distressed  Presbyterian 
Ministers  and  of  the  Poor  and  Distressed  Widows  and  Children  of  Presbyte- 
rian Ministers.  See  American  Business  Corporations  before  ijSg,  by  S.  E. 
Baldwin,  Report  of  Amer.  Hist.  Ass.,  Vol.  I  (1902). 

See  also  as  to  early  associations  in  the  nature  of  corporations,  Corpora- 
tions in  the  Days  of  the  Colony,  by  A.  McF.  Davis,  Pub.  of  Colonial  Soc.  of 
Mass.  (1892-94). 

*  See  History  of  tite  Law  of  Business  Corporations  before  1800,  by  Samuel 
Williston,  Harv.  Law  Rev.,  Vol.  II  (1888). 

There  had,  however,  been  a  considerable  development  of  corporations 
formed  for  purposes  other  than  manufacturing.  As  tabulated  by  Judge 
Simeon  E.  Baldwin,  it  appears  that  in  the  sixteen  States,  5  corporations 
had  been  formed  for  aid  of  agriculture,  26  for  banking,  36  bridge,  i  burying 
ground,  21  canal,  6  societies  of  trade  and  commerce,  i  aid  of  emigration,  i 
fisheries,  25  insurance,  2  logging,  i  land,  i  mining,  26  improving  navigation, 
38  roads  and  turnpikes,  21  waterworks  and  aqueducts,  and  by  the  United 
States  Government,  2  banks  —  a  total  of  213.  Of  these,  Massachusetts  had 
granted  88,  or  over  a  third;  Connecticut,  37;  New  York,  21;  and  Virginia,  20. 

See  S.  E.  Baldwin  in  Two  Centuries  Growth  of  American  Law. 


2S6  A  HISTORY  OF  THE  A^IERICAN  BAR 

The  modern  law  of  business  corporations  may  be  said 
to  have  been  brought  into  being  by  Jefferson's  Embargo 
Acts  —  statutes  which  produced  also  the  insolvency  acts 
which  were  soon  to  be  the  fruitful  source  of  trouble  in  the 
courts  and  especially  in  interstate  relations.  Prior  to  the 
Embargo  Acts  ^  and  the  declaration  of  war  in  1812,  foreign 
commerce  in  New  York  and  New  England,  and  the  pro- 
duction of  food  stuffs  for  export  in  the  Southern  States 
had  been  the  great  source  of  wealth.  Both  were  pros- 
trated by  those  acts.  "The  ships  rotted  in  the  docks,  the 
crops  in  the  fields  and  warehouses  —  a  chain  of  suffering 
encircled  the  community."  Under  these  conditions,  atten- 
tion was  turned  to  the  development  of  manufactures. 
Cotton,  woolen,  iron  and  glass  factories  sprang  up, 
and  with  these  industries  arose  the  first  large  business 
corporations. 

One  of  the  first  general  incorporation  acts  was  passed  in 
New  York  in  181 1,  being  limited  to  a  few  specified  indus- 
tries. Massachusetts  however  took  the  lead  in  number  of 
corporations;  and  the  scheme  of  law  of  business  cor- 
porations in  that  State  was  largely  developed  on  the  Unes 
of  the  charters,  statutes,  and  court  decisions  relating  to 
the  other  large  corporations  of  the  day  —  the  turnpike 
corporations,^  the  "proprietors  of  bridges,"  the  banking 
corporations,  the  "proprietors  of  mills,"  "the  proprietors 
of  locks  and  canals,"  and  "the  proprietors  of  log  booms." 
The  first  case,  however,  in  which  a  business  corporation 
appeared  as  party  in  Massachusetts,  was  not  decided  until 

1  Judicially  termed  by  Judge  Sewall,  in  the  first  case  arising  under 
them  in  the  Massachusetts  State  Courts  in  Baylies  v.  Fettyplace,  7  Mass. 
325,  181 1,  "those  extraordinary  laws." 

*  The  turnpike  corporations  had  come  largely  into  vogue  between  1797 
and  1810,  and  had  been  the  source  of  much  litigation,  especially  in  the 
matter  of  assessment  on  stockholders,  and  payment  of  subscriptions  to 
stock. 


THE  FEDERAL  BAR  AND   LAW,   1789-1815         287 

1813,  when  it  was  held  that  a  foreign  corporation  might 
sue  as  plaintiff.^ 

In  New  York,  the  first  case  invohdng  a  business  cor- 
poration (other  than  lock,  bank,  turnpike,  or  insurance) 
does  not  appear  until  1816 — Union  Cotton  Manufactory 
V.  Lobdell  (13  John.  462  ). 

In  the  Supreme  Court  of  the  United  States,  there  had 
been  but  two  cases  involving  corporation  law  between 
1800  and  181 5.  Both,  however,  had  a  profound  effect 
upon  the  development  of  the  law  —  the  one  in  restricting 
the  growth  of  corporate  liability,  the  other  in  emancipat- 
ing corporate  action  from  old  Common  Law  bonds.  In 
the  first,  in  1804,  Head  v.  Providence  Ins.  Co.  (2  Cranch, 
600),  Marshall  laid  down  the  doctrine  that:  "When  the 
charter  prescribes  to  them  a  mode  of  contracting,  they 
must  observe  that  mode,  or  the  instrument  no  more  creates 
a  contract  than  if  the  body  had  never  been  incorporated." 

In  the  other.  Bank  of  Columbia  v.  Patterson,  Admr.  (7 
Cranch,  299)  in  1813,  Mr.  Justice  Story  held  (largely  on 
the  authority  of  Massachusetts  cases)  that  the  old  doc- 
trine that  a  corporation  could  only  act  under  seal  was  obso- 
lete, and  that  "it  could  answer  no  salutary  purpose,  and 
would  almost  universally  contravene  the  public  conveni- 
ence." ^  No  greater  impetus  could  have  been  given  to 
business    corporations    than    tliis    decision,    which    thus 

1  See  also  early  corporation  cases.  Portsmouth  Livery  Co.  v.  Wilson,  10 
Mass.  91.  Medway  Cotton  Manufactory  v.  Adams,  10  Mass.  360.  Salem 
Iron  Factory  v.  Danvers,  10  Mass.  514.  New  York  Slate  Co.  v.  Osgood,  11 
Mass.  60.    Emerson  v.  Providence  Hat  Mfg.  Co.,  12  ^Mass.  237. 

2  As  an  illustration  of  the  difficulties  of  law  practise  at  this  time,  arising 
from  the  scarcity  and  infrequency  of  law  reports  the  Court  cites,  in  Danforlh 
V.  Schoharie  Turnpike  Co.,  12  John.  231,  decided  in  May,  1815,  this  case 
of  Bank  of  Columbia  v.  Patterson,  Admr.,  as  authority;  but  the  reporter  adds 
in  a  note,  "This  case  was  cited  and  read  to  the  Court  from  a  gazette  dated 
March  18,  1815,"  notwithstanding  the  case  cited  was  decided  in  the  United 
States  Supreme  Court,  in  1813. 


288  A  HISTORY  OF  THE  AMERICAN  BAR 

allowed  them  to  make  parol  contracts  by  authorized 
agents;  and  the  growths  of  modern  corporation  law  may 
be  dated  from  this  case. 

The  rise  of  corporations  was  not  viewed,  however,  with 
equanimity,  even  in  those  early  days.  And  many  lawyers, 
as  well  as  laymen,  echoed  the  sentiments  of  James  SulUvan, 
Attorney-General  of  Massachusetts,  who  said  in  1807 
in  his  argument,  in  Ellis  v.  Marshall  (2  Mass.  269),  a 
case  in  which  Theophilus  Parsons  and  Samuel  Dexter,  also 
appeared: 

"The  great  increase  of  corporations  for  almost  every 
purpose  is  seriously  alarming.  .  .  .  Interested  and  corrupt 
motives  are  growing  daily  more  prevalent  from  this  source. 
The  independence  and  integrity  of  every  branch  of  our 
government  are  attempted;  and  it  is  full  time  that  a  check 
be  put  to  this  spirit.  And  to  an  independent  and  enlight- 
ened judiciary  can  we  alone  look  for  its  appHcation." 

With  the  development  of  manufacturing  business,  came 
the  growth  of  insurance  law.  The  first  fire  insurance  cor- 
poration in  the  United  States  was  The  Philadelphia 
Contrihutionship  for  Insuring  Houses  from  Loss  by  Fire  in- 
corporated on  the  mutual  plan,  in  1752.  For  many  years, 
however,  most  of  the  fire  insurance  companies  were  unin- 
corporated associations,  existing  principally  in  New  York. 

One  of  the  earliest  reported  cases  of  fire  insurance  was 
Stetson  V.  Mass.  Mutual  Ins.  Co.  (4  Mass.  330),  in  1808. 
There  was  no  text  book  on  the  subject,  however,  prior  to 
181 5.  Marine  insurance  was  an  early  and  well  developed 
part  of  the  law,  although  carried  on,  until  after  the  be- 
ginning of  the  Nineteenth  Century,  largely  by  private 
individuals  unincorporated.  Life  insurance  was,  in  181 5, 
hardly  known,  the  earliest  case  being  that  of  Lord  v.  Dall 
(12  Mass.  115),  in  1809.    Accident  insurance  was  unknown. 

The  limited  scope  of  the  law  of  the  times  is  perhaps  best 


THE  FEDERAL  BAR  AND  LAW,   1789-1815         289 

illustrated  by  the  fact  that  the  law  of  torts  which  makes  so 
large  a  part  of  the  body  of  modern  law,  was,  in  181 5,  prac- 
tically confined  to  cases  of  trespass  to  person  or  property, 
assault,  trover,  replevin,  and  slander;  actions  of  deceit  and 
actions  for  negligence  were  very  few.  In  Kirhy's  Reports 
in  Cormecticut,  of  two  hundred  and  one  cases  from  1785  to 
1788,  fifty-two  are  actions  of  tort,  of  which  one  half  are 
trespass,  and  one  half  actions  of  disseizin  or  ejectment. 
In  Harris  and  McUenry's  Reports  in  Maryland,  published 
in  1809,  covering  the  years  1658  to  1775,  a  large  proportion 
of  the  cases  are  actions  of  ejectment  or  trespass.^ 

In  New  York,  the  first  reported  negligence  case  was  not 
until  1810  {Townsend  v.  Susquehammh  Turnpike  Road, 
6  John.  90);  the  first  actions  against  a  common  carrier, 
in  1810  and  1813  {Schiefflcn  v.  Harvey,  6  John.  170;  Elliott 
v,  Russell,  10  John,  i);  the  first  negligence  case  invohang 
a  steam  carrier,  decided  in  the  country,  occurred  in  181 7 
{Foot  V.  Wiswall,  13  John.  304),  in  which  the  conditions 
to  which  the  law  was  to  be  applied  were  so  novel,  that  the 
plaintiff  argued  seriously,  that  it  was  negligence,  per  se, 
to  navigate  a  steamboat  on  a  dark  night. 

In  the  year  181 5,  patent  law  in  the  United  States  was 
just  beginning  to  come  into  existence.  In  1790,  there  had 
been  enacted  the  first  general  Patent  Act;  the  first  patent 
being  issued  "for  making  pot  and  pearl  ashes."  In  1792, 
thirty- three  patents  had  been  issued;  in  1793,  eleven;  and 
in  1794,  seventy-three,  among  which  was  Eli  Whitney's 
cotton  gin.  In  the  whole  first  ten  years,  however,  there 
were  only  two  hundred  and  sixty-six  patents. 

*  Sir  Frederick  Pollock,  writing  in  1886,  says  that  the  earliest  and  prac- 
tically the  only  English  text  book  on  Torts  which  he  could  find  "was  a 
meagre,  unthinking  digest  of  The  Law  of  Actions  on  the  Case  for  Torts  and 
Wrongs,  published  in  1720,  remarkable  chiefly  for  the  depths  of  historical 
ignorance  which  it  occasionally  reveals." 


290  A  HISTORY  OF  THE  AMERICAN  BAR 

The  first  book  on  patents  was  not  written  until  1803, 
when  Collier  on  Patents  was  published  in  England.  It  was 
not  until  181 9,  that  cases  of  infringement  of  patents  were 
brought  under  the  equity  jurisdiction  of  the  United  States 
Circuit  Courts.  In  the  Supreme  Court  prior  to  18 15,  there 
had  been  only  two  patent  cases  —  Tyler  v.  Tuel  (6  Cranch, 
324),  in  1810,  involving  the  right  of  an  assignee  of  part  of 
a  patent  to  maintain  an  action  on  the  case  for  infringe- 
ment, and  Evans  v.  Jordan  (9  Cranch,  199),  in  181 5;  the 
latter  being  the  first  of  an  interminable  series  of  cases,  in- 
volving an  improved  hopper  boy  for  manufacturing  flour 
and  meal.  In  all  the  Federal  Circuit  Courts,  there  had 
only  been  thirteen  patent  cases,  six  of  which  had  been  de- 
cided by  Judge  Bushrod  Washington,  and  five  by  Judge 

Story. 

Perhaps  one  of  the  most  important  effects  of  the  War  of 
181 2  upon  American  law  was  the  impetus  which  it  gave 
to  the  publication  of  American  law  reports  —  first,  through 
the  increased  spirit  of  nationality  which  it  promoted; 
second,  through  the  cutring  off  of  the  importation  of  Eng- 
lish books. 

It  is  to  be  remembered  that  in  181 2,  the  first  American 
law  report  was  only  twenty-three  years  old;  in  few  of  the 
States  had  law  reports  been  published  for  more  than  six 
or  eight  years.  In  the  great  State  of  New  York  the  first 
report  had  been  published  in  1801,  and  in  Massachusetts 

in  1805. 

Judges  hitherto  had  not  been  in  the  habit  of  writing  out 
their  decisions;  and  had  they  done  so,  they  had  no  reporter, 
and  no  way  of  making  their  decisions  public,  historical,  or 
authoritative  as  precedent.^ 


1 


For  interesting  account  of  these  legal  conditions,  see  Discourse  on  the 
Life,  Character  and  Public  Services  of  Ambrose  Spencer,  Chief  Justice  of  New 
York,  by  Daniel  D.  Barnard  (1849). 


THE  FEDERAL  BAR  AND  LAW,    1 789-181 5  291 

With  the  beginning  of  printed  reports,  many  of  the  cases 
were,  therefore,  so  far  as  they  were  to  be  cited  in  the  future, 
cases  "of  first  impression."  Hence,  it  was  fortunate  for 
the  United  States  that,  at  the  time  when  American  de- 
cisions were  beginning  to  be  published  and  the  cases  so 
printed  were  to  be  used  by  future  generations  as  establish- 
ing the  law,  there  happened  to  be  presiding  over  the  courts 
of  many  of  the  States  Chief  Justices  of  pre-eminent  ability 
as  lawyers.  In  181 2,  in  Massachusetts,  Theophilus  Parsons 
was  Chief  Justice;  in  New  Hampshire,  Jeremiah  Smith; 
in  New  York,  James  Kent  (with  whom  were  associated 
three  great  lawyers,  Ambrose  Spencer,^  Brockholst  Liv- 
ingston and  Smith  Thompson ;  ^  in  Pennsylvania,  William 
Tilghman;  in  South  CaroHna,  Henry  W.  De  Saussure  was 
Chancellor.^ 

It  may  also  be  noted  as  a  fortunate  chance  that,  for 
nearly  twenty  years  (1804-1823)  during  this  early  crucial 
and  formative  period  in  the  Federal  law,  a  majority  of 
members  of  the  Supreme  Court  remained  unchanged,  and 
hence  a  steady  policy  could  be  adhered  to  by  Marshall, 
Johnson,  Livingston  and  Washington.  The  following 
changes  took  place  in  the  personnel  of  the  Court  between 
1800  and  1815:  In  1804  William  Johnson  of  South  Carolina 
succeeded  Alfred  Moore  on  the  latter's  resignation; 
Brockholst  Livingston  succeeded  William  Paterson  in 
1806;  Thomas  Todd  of  Kentucky  was  appointed,  in  1807, 
as  the  new  Sixth  Justice;  Joseph  Story  succeeded  William 
Cushing,  in  181 1;  and  Gabriel  Duvall  succeeded  Samuel 
Chase,  in  181 1. 

>  Born  in  1765,  Harvard  1783,  Chief  Justice  1819-1823. 
*  Born  in  1767,  Chief  Justice  1814-1819. 
'  Born  in  1763,  Chancellor  in  iSo3. 


CHAPTER  XII 

EARLY   STATE    BARS    OF   NEW   YORK    AND 
NEW    ENGLAND      • 

Owing  to  the  fact  that  few  of  the  lawyers'  of  New  York 
and  of  the  New  England  States  appeared  before  the  United 
States  Supreme  Court  in  its  early  years,  it  is  due  to  the 
Bars  of  those  States  to  give  a  separate  description  of  the 
prevailing  conditions. 

New  York 

The  history  of  the  courts  and  of  the  legal  profession  in 
the  early  years  of  the  State  of  New  York  falls  naturally 
into  two  periods  —  one  covering  the  twenty  years  after 
the  Revolution  and  ending  with  the  death  of  Alexander 
Hamilton  and  the  appointment  of  James  Kent  as  Chief 
Justice,  in  1804;  the  other  covering  the  twenty  years 
succeeding  1804  —  the  era  of  New  York's  great  advocates, 
Emmet,  Wells,  Ogden  and  Van  Vechten. 

The  first  State  Supreme  Court  in  1777  was  composed  of 
John  Jay,^  who  served  as  Chief  Justice  until  1789,  Robert 
Yates,^  and  John  Sloss  Hobart  —  the  latter  not  having 
been  bred  to  the  profession  of  the  law  at  all.  Richard 
Morris  became  Chief  Justice  in  1789,  succeeded  in  the 
next  year  by  Robert  Yates,  who  served  imtil  1798,  when 

*  Bom  in  1745,  a  Columbia  graduate  of  1764,  admitted  to  the  Bar  in 
1768,  first  Chief  Justice  of  the  Supreme  Court  of  the  United  States  in 
1789. 

*  Bom  in  1738,  studied  with  William  Livingston. 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND     293 

John  Lansing^  took  his  place.  In  1801,  Morgan  Lewis  ^ 
succeeded  Lansing, 

James  Kent,  who  at  the  age  of  thirty-five  had  been  ap- 
pointed on  the  Court  in  1798,  became  Chief  Justice  in 
1804.  From  1794  to  1801,  Egbert  Benson,^  Kent's  in- 
structor in  law,  sat  on  the  bench  with  him  as  an  associate 
judge.  Robert  R.  Livingston  '^  served  as  Chancellor  from 
1777  to  1 80 1,  being  succeeded  by  John  Lansing. 

Judge  Barnard,  in  his  paper  on  the  Hfe  of  Ambrose 
Spencer,  written  in  1849,  thus  described  the  conditions  of 
the  Court  prior  to  1804: 

"Up  to  Kent's  time,  the  administration  of  the  law  had 
been  conducted  in  a  very  inefficient  and  unsatisfactory 
way.  The  cases  that  came  before  the  court  were  shghtly 
examined  both  at  the  bar  and  on  the  bench.  .  .  .  The 
bench  had  not  been  without  respectable  talent  and  legal 
learning,  but  these  had  not  been  applied  in  that  thorough, 
laborious  and  businesslike  way  so  necessary  to  give  strength 
and  character  to  the  court  and  to  the  law.  It  is  a  fact, 
however,  that  one  of  the  number.  Judge  Hobart,  who  for 
twenty  years  had  aided  to  give  the  decisions  of  the  court 
such  strength  and  character  as  they  had,  was  not  a  lawyer 
—  he  had  not  been  educated  to  the  profession  of  the  law. 
The  judges  did  not  write  out  their  opinions  —  not  even 
in  the  most  important  cases;  and  if  they  had  done  so,  they 
had  no  reporter  and  no  way  of  making  their  decisions 
public  and  historical.  It  was  his  (Kent's)  practise, 
promptly  begun,  of  bringing  to  the  consultation  of  the 
judges,  opinions  in  all  important  cases,  carefully  written 
out  after  the  most  laborious  examination  of  the  cases  and 
of  aU  the  law  apphcable  to  them,  to  which  the  law  is  in- 

*  Born  in  1754,  studied  with  James  Duane. 

*  Born  in  1754,  a  Princeton  graduate  of  1773,  studied  with  John  Jay. 

'  Bom  in  1746,  a  Columbia  graduate  of  1765,  Attorney-General  1777  to 
1789. 

*  Born  in  1746,  a  Columbia  graduate  of  1765,  studied  with  William  Smith 
and  William  Livingston. 


294  A  HISTORY  OF  THE  AMERICAN  BAR 

debted  for  that  entire  change  in  the  habits  of  all  the  judges. 
Still  it  must  be  observed  that  no  attempt  was  made  at 
regular  reporting  till  1803,  and  it  was  not  till  1804,  the 
year  of  the  commencement  of  Judge  Ambrose  Spencer's 
judicial  labors  (and  of  Kent  as  Chief  Justice),  that  the 
Legislature  was  induced  to  give  authority  to  the  Supreme 
Court  to  appoint  a  reporter.  ...  I  mention  it  as  a  fortu- 
nate circumstance  that  the  business  of  reporting  for  the 
Supreme  Court  fell  into  the  hands  of  that  able  and  accom- 
plished legal  historiographer,  William  Johnson." 

The  first  regular  printed  reports  of  decided  cases  were 
published  in  1804,  by  George  Caines,  the  Legislature  con- 
stituting an  official  reporter  also  in  that  year.  Of  the 
evil  effects  of  the  lack  of  such  reports,  Caines  said  in  the 
preface : 

"The  inconveniences  resulting  from  the  want  of  a  con- 
nected system  of  judicial  reports  have  been  experienced 
and  lamented  by  every  member  of  that  profession  for  whose 
use  the  following  sheets  are  peculiarly  designed.  The 
determinations  of  the  courts  have  been  with  difficulty 
extended  beyond  the  circle  of  those  immediately  concerned 
in  the  suits  in  which  they  were  pronounced;  points  ad- 
judged have  been  often  forgotten,  and  instances  might 
be  adduced  where  those  solemnly  established  have,  even 
by  the  bench,  been  treated  as  new.  If  this  can  happen  to 
those  before  whom  every  subject  of  debate  is  necessarily 
agitated  and  determined,  what  must  be  the  state  of  the 
lawyer  whose  sole  information  arises  from  his  own  prac- 
tise or  the  hearsay  of  others?  Formed  on  books  the 
doctrine  of  which  have  in  many  respects  been  wisely  over- 
ruled, he  must  have  frequently  counselled  without  advice 
and  acted  without  a  guide." 

The  Bar  of  New  York  increased  vastly  in  weight  during 
the  twenty  years  after  the  Revolution.  The  important 
cases  involving  intricate  questions  of  marine,  insurance 
and  mercantile  law,  crowded  the  courts;  and  the  departure 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    295 

of  many  of  the  ablest  lawyers  who  remained  Loyalist  dur- 
ing the  war,  opened  a  great  opportunity  to  the  younger 
members  of  the  Bar.'  Nevertheless,  even  as  late  as  17S5, 
the  New  York  City  Bar  numbered  only  forty. 

An  illuminating  account  of  legal  conditions  and  of  the 
lawyers  of  this  period  after  the  Revolution  was  given  by 
James  Kent  in  his  Address  to  tJte  Law  Association  oj  the 
City  of  New  York,  in  1836. 

"After  the  war  had  closed,  by  the  peace  of  1783,  the 
landmarks  of  our  ancient  jurisprudence  reappeared.  They 
had,  fortunately,  not  been  obUterated  or  disturbed  by 
the  tempest.  Ahnost  the  entire  system  of  the  English 
law  recognized  by  our  Constitution  was  put  into  operation. 
The  profession  was  called  into  the  most  active  business; 
and  as  the  principles  applicable  to  our  Constitution  were 
unsettled,  and  the  rules  of  law  unknown,  except  through 
the  distant  and  dim  vision  of  English  reports,  the  claims 
of  real  property  opened  at  once  a  large  field  of  forensic 
litigation.  Ever>'thing  in  the  law  seemed,  at  that  day, 
to  be  new;  we  had  no  domestic  precedents  to  guide  us. 
English  books  of  practice  as  well  as  English  decisions 
were  resorted  to,  and  followed  with  the  implicit  obedience 
and  reverence  due  to  oracles.  Our  judges  were  not  re- 
markable for  law  learning.  Almost  every  point  of  practice 
had  to  be  investigated  and  tested.  Even  Mr.  Hamilton 
thought  it  necessary,  at  a  circuit  at  which  I  was  present, 
in  17S4,  to  produce  authorities  to  demonstrate  and  guide 
the  power  of  the  court  in  the  familiar  case  of  putting  off 
a  cause  at  a  circuit.  A  few  gentlemen  of  the  colonial  school 
resumed  their  ancient  practice,  but  the  bar  was  chiefly 
supplied  by  a  number  of  ambitious  and  high  spirited 
young  men,  who  had  returned  from  the  field  of  arms  with 
honorable  distinction,  and  by  extraordinary  appHcation, 

'  In  1779,  the  Legislature  suspended  all  licenses  to  plead  or  practise  law 
granted  before  .\pril  21,  1777,  subject  to  restoration  provided  that  the 
lawyer  should  give  satisfactory  proof  before  a  sheriff's  jur>'  that  he  had 
been  true  to  the  American  cause.  Many  of  those  lawyers  who  bad  not 
become  refugees  were  unable  to  take  this  oath. 


296  A  HISTORY  OF  THE  MIERICAN  BAR 

they  soon  became  qualified  to  commence  their  career  at 
the  bar  with  distinguished  reputation. 

"The  whig  lawyers,  at  the  commencement  of  the  war, 
were,  most  of  them,  afterwards  called  to  fill  important 
stations  in  public  life,  and  they  never  resumed  the  practice 
of  their  profession.  Among  the  members  of  the  bar  who 
took  a  leading  share  in  business  for  some  years  after  the 
close  of  the  American  war,  we  may  very  fairly  select  the 
names  of  Samuel  Jones,  Richard  Harrison,  Egbert  Benson, 
Alexander  Hamilton,  John  Lawrence,  Aaron  Burr,  Henry 
Brockholst  Livingston,^  and  Robert  Troup.^  Their  minds 
were  exercised,  and  acquired  fervour  and  force,  either 
in  the  great  contest  for  independence,  or  in  the  equally 
interesting  struggle  for  a  national  constitution.  Colonel 
Burr  was  acute,  quick,  terse,  pohshed,  sententious,  and 
sometimes  sarcastic  in  his  forensic  discussions.  He  seemed 
to  disdain  illustration  and  expansion,  and  confined  himself 
with  stringency  to  the  point  in  debate.  Mr.  Brockholst 
Livingston  was  copious,  fluent,  abounding  in  skilful  criti- 
cism and  beautiful  reflections.  His  mind  was  famiHar 
with  the  best  classical  productions  in  ancient  and  modern 
literature,  and  it  was  adorned  with  a  cultivated  and  elegant 
taste.  His  forte  lay  in  ingenious  and  sprightly  illustration, 
and  in  popular  and  animated  addresses  to  the  jury.  Colonel 
Troup  united  good  sense  with  accurate  practice;  he  was 
par  negotiis,  negue  supra.  By  patient  industry  he  came 
to  the  discussion  at  the  bar  a  master  of  the  law  and  learn- 
ing of  the  case.  He  argued  with  simpHcity,  earnestness, 
and  a  winning  candour,  which  commanded  invariable 
attention  and  respect.  Mr.  Jones,  the  recorder  of  the  city, 
and  afterwards  comptroUer  of  the  state  was,  in  his  day, 
the  patriarch  of  the  profession.  No  one  surpassed  him 
in  clearness  of  intellect,  and  in  moderation  and  extreme 
simplicity  of  character;  no  one  equaUed  him  in  his  accu- 
rate knowledge  of  the  technical  rules  and  doctrines  of  real 
property  and  in  familiarity  with  the  skilful  and  elaborate, 
but  now  obsolete  and  mysterious,  black  letter  learning 
of  the  Common  Law.     Richard  Harrison  was  a  scholar  of 

1  Bom  in  1757,  a  Columbia  graduate  of  1778,  studied  under  W.  Smith,  Jr. 
*  Bom  in  1757,  a  Columbia  graduate  of  1774,  studied  under  John  Jay. 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    297 

the  first  order,  and  after  the  age  of  seventy,  he  was  study- 
ing the  more  obscure  and  minor  Greek  poets  with  the  ardour 
of  youth.  He  possessed  very  superior,  and  I  think,  un- 
equalled attainments  in  all  the  comphcated  doctrines  and 
refinements  of  equity  jurisprudence,  and  he  was  deeply 
read  in  the  learning  of  the  civilians.  In  his  calm,  chaste, 
methodical  and  logical  arguments  at  the  bar,  he  was  free 
from  all  loose  and  declamatory  expansion,  and  his  speeches 
were  a  steady  flow  of  sound  principles,  supported  by  sound 
authority,  and  bearing  strongly  on  the  point  in  discussion. 
Nor  will  I  permit  myself  to  withhold  the  tribute  of  respect 
and  gratitude  due  to  the  memory  of  my  preceptor,  the 
venerable  Egbert  Benson  —  he  was  perfectly  instructed 
in  the  once  vigorous,  but  now  feeble  and  attenuated  dis- 
cipline of  the  old  school  of  practice,  and  was,  of  course,  a 
master  of  the  old  reports,  and  of  the  skill  and  logic  of 
special  pleading.  He  was  possessed  of  neat  and  orderly 
business  qualifications  of  the  highest  value,  and  he  united 
great  quickness  and  acuteness  of  mind,  and  was  accustomed 
to  carry  his  researches  back  to  the  recesses  and  grounds  of 
the  law,  and  to  rest  his  opinion  and  argument  on  soHd 
elementary  principles.  His  candour  and  simplicity,  his 
purity  and  integrity,  his  HberaHty  and  kindness,  his  great 
conversation  powers,  as  well  as  the  unquestionable  ability 
and  fideUty  with  which  he  discharged  his  public  trusts, 
and  especially  that  of  attorney  general  of  this  state,  for 
the  first  sixteen  years  of  our  independence,  attracted 
general  respect,  as  well  as  the  warm  personal  attachment 
of  his  contemporaries  of  the  last  generation." 

In  addition  to  those  named  by  Kent,  there  may  be  men- 
tioned Richard  IMorris  Smith,  Richard  Varick,^  Josiah 
Ogden  Hoffman,  Gouverneur  Morris,^  Edward  Livingston,^ 
and  Abraham   Van   Vechten"*  —  the  latter  termed   ''the 

1  Born  in  1750,  Attorney-General  1789-1791. 

'  Born  in  1752,  a  Columbia  graduate  of  1768,  studied  with  W.  Smith,  Jr. 

»  Born  in  1764,  a  Princeton  graduate  of  1781,  admitted  to  the  Bar  in  1785, 
United  States  District  Attorney  iSoi. 

*  Born  in  1762,  studied  with  John  Lansing,  Attorney-General  1810, 1S13- 
1815. 


298  A  HISTORY  OF  THE  AMERICAN  BAR 

father  of  the  New  York  Bar,"  being  the  first  lawyer  ad- 
mitted to  practise  under  the  State  Constitution.^ 

The  leadership  of  the  Bar  was  generally  assigned  to 
Alexander  Hamilton,  who  was  born  in  1757  and  admitted 
to  practise  in  1782.  From  the  date  of  his  first  great  case 
of  Rutgers  v.  Waddington,  in  1784,  until  his  appointment 
as  Secretary  of  the  Treasury  in  1789,  his  legal  fame  was 
pre-eminent.  Hamilton's  chief  competitor  was  Aaron 
Burr,  who  was  born  in  1756,  graduated  at  Princeton  in 
1772,  and  was  admitted  to  practise  in  the  same  year  with 
Hamilton. 

Three  years  later  the  famous  James  Kent  was  admitted 
to  practise.  Born  in  1763,  a  Yale  graduate  of  1781,  he 
studied  in  the  office  of  Egbert  Benson,  the  State  Attorney- 
General,  and  practised  at  Poughkeepsie  from  1786  to 
1793.  In  1797,  he  became  Recorder  of  the  City  of  New 
York;  in  1798,  Judge  of  the  Supreme  Court;  in  1804,  Chief 
Justice;  and  in  18 14,  Chancellor.  Of  Hamilton  and  Burr, 
Kent  gave  an  interesting  description  in  his  Address  in 
1836,  and  also  in  his  sketch  of  Hamilton  in  1832,  from 
which  the  following  extracts  are  made: 

"But  among  all  his  brethren  Colonel  Hamilton  was  indis- 
putably pre-eminent.  This  was  universally  conceded.  He 
rose  at  once  to  the  loftiest  heights  of  professional  eminence 
by  his  profound  penetration,  his  power  of  analysis,  the 
comprehensive  grasp  and  strength  of  his  understand- 
ing, and  the  firmness,  frankness  and  superiority  of  his 
character.  .  .  . 

"At  that  day  everything  in  law  seemed  to  be  new.  Our 
judges  were  not  remarkable  for  law  learning.  We  had  no 
precedents  of  our  own  to  guide  us.  .  .  .  Nothing  was 
settled  in  our  courts.    Every  point  of  practice  had  to  be 

*  A  graphic  summing  up  of  a  few  of  the  leaders  at  the  close  of  the 
Eighteenth  Century  is  given  in  the  Discourse  on  the  Life,  Character  and 
Public  Services  oj  Ambrose  Spencer,  by  Daniel  D.  Barnard  (1849). 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    299 

investigated,  and  its  application  to  our  courts  and  insti- 
tutions questioned  and  tested. 

"Mr.  Hamilton  thought  it  necessary  to  produce  author- 
ities to  demonstrate  and  to  guide  the  power  of  the 
court.  ...  He  never  made  any  argument  in  court  in 
any  case  without  displaying  his  habits  of  thinking  and 
resorting  to  some  well  founded  principle  of  law.  .  .  . 
Law  was  always  treated  by  him  as  a  science,  founded  on 
established  principles.  .  .  .  There  were  no  decisions  of 
any  of  the  courts  published.  There  were  none  that 
contained  any  investigation.  In  the  city  of  New  York, 
Hamilton,  Harrison,  Burr,  Cozine  and  perhaps  John 
Lawrence  and  old  Samuel  Jones  (then  deemed  and  known 
as  the  oracle  of  the  law)  began  to  introduce  the  knowl- 
edge and  cultivation  of  the  law  which  was  confined 
of  course  to  Coke,  Littleton,  and  the  reporters  down  to 
Burrow. 

"Hamilton  brought  a  writ  of  right  in  a  Waddell  case  in 
this  city  which  made  quite  a  sensation  and  created  much 
puzzle  in  the  court.  The  judges  of  the  Supreme  Court 
(Morris,  Yates  and  Lansing)  were  very  illiterate  as  law- 
yers. .  .  .  The  country  circuit  courts  were  chiefly  occu- 
pied in  plain  ejectment  suits  and  in  trying  criminals.  In 
short,  our  jurisprudence  was  a  blank  when  Hamilton  and 
Harrison  first  began  by  their  forensic  discussions  to  intro- 
duce principles  and  to  pour  light  and  learning  upon  the 
science  of  law.  .  .  . 

"Mr.  Hamilton  returned  to  private  life  and  to  the  prac- 
tice of  the  law  in  New  York  in  the  spring  of  1795.      ■  ■ 

"Between  the  years  1795  and  1798  he  took  his  station 
as  the  leading  counsel  at  the  Bar.  He  was  employed  in 
every  important  and  especially  in  every  commercial  case. 
He  was  a  very  great  favorite  with  the  merchants  of  New 
York,  and  he  most  justly  deserved  to  be,  for  he  had  uni- 
formly shown  himself  to  be  one  of  the  most  enlightened, 
intrepid,  and  persevering  friends  to  the  commercial  pros- 
perity of  this  country.  Insurance  questions,  both  upon 
the  law  and  the  fact,  constituted  a  large  portion  of  the 
litigated  business  in  the  courts,  and  much  of  the  intense 
study  and  discussion  at  the  Bar.    The  business  of  insurance 


300  A  HISTORY  OF  THE  AMERICAN  BAR 

was  carried  on  principally  by  private  underwriters,  and 
as  the  law  had  not  been  defined  and  settled  in  this  country 
by  a  course  of  judicial  decisions,  and  was  open  to  numerous 
perplexed  questions  arising  out  of  our  neutral  trade,  and 
was  left,  under  a  complicated  mixture  of  law  and  fact,  very 
much  at  large  to  a  jury,  the  litigation  of  that  kind  was 
immense.  Mr.  Hamilton  had  an  overwhelming  share  of 
it,  and  though  the  New  York  Bar  could  at  that  time  boast 
of  the  clear  intellect,  the  candor,  the  simplicity,  and  black- 
letter  learning  of  the  elder  Jones,  the  profound  and  richly 
varied  learning  of  Harrison,  the  classical  taste  and  elegant 
accompHshments  of  Brockholst  Livingston,  the  solid  and 
accurate,  but  unpretending,  common  law  learning  of  Troup, 
the  chivalrous  feelings  and  dignified  address  of  Pendleton, 
yet  the  mighty  mind  of  Hamilton  would  at  times  bear 
down  all  opposition  by  its  comprehensive  grasp  and  the 
strength  of  his  reasoning  powers. 

"He  taught  us  all  how  to  probe  deeply  into  the  hidden 
recesses  of  the  science,  or  to  follow  up  principles  to  their  far 
distant  sources.  He  was  not  content  with  the  modern 
reports,  abridgments  or  translations.  He  ransacked  cases 
and  precedents  to  their  very  foundations;  and  we  learned 
from  him  to  carry  our  inquiries  into  the  commercial  codes 
of  the  nations  of  the  European  continent,  and  in  a  special 
manner  to  illustrate  the  law  of  insurance  by  the  severe 
judgment  of  Emerigon  and  the  luminous  commentaries 
of  Valin.  If  I  were  to  select  any  two  cases  in  which  his 
varied  powers  were  most  strikingly  displayed,  it  would  be 
the  case  of  Le  Guen  v.  Gouverneur  and  Kemble,  argued 
before  the  Court  of  Errors  in  the  winter  of  1800,  and  the 
case  of  Croswell  v.  The  People,  argued  before  the  Supreme 
Court  in  February  term,  1804,  and  involving  a  libel  on 
Thomas  Jefferson." 

During  the  years  1800  to  1824,  the  judges  of  the  Supreme 
Court  were  men  of  more  distinguished  legal  ability  than  in 
the  pre\dous  period  —  Smith  Thompson,^  appointed  in 
1 80 1,   who    succeeded   Kent    as   Chief  Justice   in   18 14; 

^  Born  in  1768. 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    301 

Ambrose  Spencer,^  appointed  a  judge  in  1803  and  Chief 
Justice  in  1819;  Daniel  D.  Tompkins,^  a  judge  from  1804 
to  1807;  Brockholst  Livingston,  a  judge  from  1802  to 
1807;  William  W.  Van  Ness,  appointed  judge  in  1807, 
Joseph  C.  Yates,  appointed  in  1808;  Jonas  Piatt,  ap- 
pointed in  1814;  and  John  Woodworth,  appointed  in  1819. 
Of  these,  two  became  Judges  of  the  United  States  Supreme 
Court  —  Livingston  in  1807,  and  Thompson  in  1824. 
Chief  Justice  Kent  succeeded  Lansing  as  Chancellor  in 

1814. 

During  these  years  the  Bar  increased  greatly  in  numbers, 
as  appears  from  the  following  item  in  Niks'  Register, 
June  27,  1818:  '*...  Lawyers  'as  plentiful  as  black- 
berries.' From  a  late  census  of  the  New  York  Bar,  it 
appears  that  there  are  1200  counsellors  and  attorneys  at 
law  that  are  fostered  in  the  bosom  of  the  State!  290  are 
practising  in  the  city  of  New  York." 

Three  lawyers  stood  forth  pre-eminent  above  their 
fellows,  and  it  would  be  difficult  to  decide  between  them 
for  the  leadership  of  the  Bar  —  John  Wells,  Thomas  Addis 
Emmet  and  David  B.  Ogden.^ 

1  Born  in  1765,  a  Harvard  graduate  of  1783. 

2  Born  in  1774,  a  Columbia  graduate  of  1795,  admitted  to  the  Bar  in  1797. 
»  Daniel  Lord  in  his  address  before  the  New  York  Bar,  December  14, 

1847,  on  the  death  of  Ex-Chancellor  Kent,  said  of  the  Bar  of  the  early 
Nineteenth  Century: 

"Let  me  bring  up  to  your  view  Emmet  whose  enlarged  and  extensive 
learning  was  equalled  by  his  childlike  simplicity  of  heart.  Colden,  the  polite 
scholar,  the  speculative  philosopher,  the  able  lawyer;  also  that  model  of 
all  that  is  venerable  in  our  memory,  Van  Vechten,  whose  teeming  eloquence 
was  Ciceronian  and  charmed  every  heart;  the  terse,  the  highly  gifted  Henry; 
the  younger  Jay  full  to  abounding  in  every  noble  trait;  and  that  union  of 
scholar,  lawyer,  orator  and  gentleman,  John  Wells.  Look,  also,  at  the 
bench.  The  ingenious,  polished  Livingston;  the  sound  and  judicious  Rad- 
cliil;  Thompson,  the  honest,  steady  and  stanch  friend  of  all  that  was  true 
and  just;  Van  Ness,  the  accomplished  man  of  genius;  Piatt,  the  sedate, 
the  sober-minded;  and  last,  him  who  in  every  trait  and  lineament,  in  every 


302  A  HISTORY  OF  THE  AMERICAN  BAR 

Of  these,  the  most  eloquent  advocate  and  the  most  in- 
teresting character  was  Thomas  Addis  Emmet.     Bom  in 
Ireland  in  1765,  the  brother  of  the  famous  Irish  patriot, 
Robert  Emmet,  he  had  first  studied  medicine  at  Edin- 
burgh, then  read  law  in  the  Temple  in  London  and  had 
been  admitted  to  practise  in  Dublin  in   179 1.     He  had 
actively  engaged  in   the  Irish   rebellion   against  English 
rule,  and  being  obliged  to  flee  from  the  country,  came  to 
New  York  in  1804.    As  the  rule  of  court  prescribed  a  three 
years'  study  in  the  State  for  admission  to  practise  in  the 
Inferior  Courts  and  sLx  years  in  the  Supreme  Court,  his 
application  for  a  waiver  of  this  rule  met  with  great  op- 
position from  the  Bar.     The  principal  lawyers  of  New 
York  were  Federahsts,  and  "the  Federalist  party  hated 
France,  hated  Ireland  in  her  revolutionary  character,  ancj 
hated  Charies  James  Fox  and  his  Whig  party  m  Eng- 
land."   A  rebel  against  the  English  Tory  Government  was 
in  their  eyes  a  Jacobin,  and  the  prejudice  against  Jacobins 
at  the  Bar  was  still  extreme.    Nevertheless,  there  was  some 
strong  Anti-Federalist  lawyers,  and   the  prevailing  poli- 
ticians  were   of   that   party.     Governor   George   Clinton 
urged    Emmet's    case;     and    the   Anti-Federalist   judges, 
Ambrose  Spencer,  Daniel  D.  Tompkins  and  Smith  Thomp- 
son were  friendly  to  him.    James  Kent,  then  Chief  Justice, 
being  a  rabid  Hamiltonian  Federalist,  was  hotly  opposed 
to  Emmet's  admission,  but  the  Court  finally  decided  in 
Emmet's  favor. 

His  reception  at  the  New  York  Bar  has  been  thus  de- 
scribed by  a  contemporary  lawyer:  ^ 

part  and  member  was  every  way  a  giant,  Ambrose  Spencer.  With  these 
associates  as  competitors  and  coadjutors,  did  Judge  Kent  dispense  justice. 
To  whom  of  them  all  was  he  unequal?  " 

»  Memoir  of  Thomas  Addis  Emmel,  by  Charles  G.  Haines  (1829).  See 
also  T.  A.  Emmet,  by  Joseph  Story;  The  Emmet  Family,  by  Dr.  T.  A. 
Emmet  (1898). 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGL.\x\D    303 

"The  great  men  of  the  New  York  Bar  were  Federalists. 
They  therefore  turned  their  faces  against  Mr.  Emmet. 
They  formed  a  combination  and  agreed  to  decline  all  pro- 
fessional union  and  consultation  with  him.  When  Mr. 
Emmet  ascertained  the  existence  of  the  league  he  did 
not  wait  for  an  attack.  He  proved  the  assailant.  When- 
ever he  met  any  of  the  league  at  the  Bar,  he  assumed  the 
attitude  of  professional  war,  and  he  lost  nothing  by  contact. 
If  Mr.  Emmet  has  any  one  extraordinary  power,  it  is  in 
the  ready  talent  of  successful  and  overawing  reply.  The 
league  was  soon  dissolved.  Business  flowed  in  and  not 
long  after  his  arrival  his  profession  produced  him  $10,000 
-$15,000  a  year." 

His  remarkable  eloquence  at  once  carried  him  to  the 
very  head  of  the  New  York  Bar;  and  in  181 2,  as  an  ardent 
friend  of  De  Witt  Clinton,  he  was  made  State  Attorney- 
General. 

John  Wells  was  the  exact  opposite  to  Emmet  in  personal 
and  professional  characteristics.  Emmet  won  his  cases  by 
his  vehement  and  impassioned  oratory  as  well  as  by  his 
untiring  study  of  the  law.  Wells  convinced  juries  and 
judges  by  his  unrivalled  lucidity  and  the  irresistible  power 
of  his  logic.  He  was  born  in  1770,  a  graduate  of  Princeton 
in  1788,  and  admitted  to  practise  as  counsellor  in  1795. 
Upon  Hamilton's  death,  in  1804,  he  succeeded  largely  to 
his  enormous  business  among  the  merchants  of  New 
York.» 

David  B.  Ogden  was  born  in  1769.  For  nearly  twenty 
years  after  1820  his  practise  before  the  United  States  Su- 
preme Court  exceeded  that  of  any  other  New  York  lawyer, 
and,  in  fact,  he  argued  more  important  cases  before  that 
tribunal  than  any  other  American  lawyer  save  Daniel 
Webster  and  William  Wirt.    Of  him,  Chief  Justice  Mar- 

*  Memorial  of  the  Life  and  Character  of  John  Wells,  vnth  Reminiscence  of  Ike 
Judiciary  and  Members  of  the  New  York  Bar  (privately  printed,  1874). 


304  A  HISTORY  OF  THE  AMERICAN  BAR 

shall  said  that  when  he  had  stated  his  case,  it  was  already 
argued.^ 

Contemporary  with  these  three  great  lawyers,  there 
were  many  of  distinguished  ability  —  Cadwallader  D. 
Colden,2  De  Witt  Clinton,^  William  Alexander  Duer,-* 
John  V.  Henry,  Peter  A.  Jay,^  Samuel  A.  Talcott,  Daniel 
Cady,^  John  Anthon,'^  George  Griffin,^  Martin  Van  Buren,^ 
Elisha  Williams,^"  John  Duer,"  Henry  Wheaton,^^  Hugh 
Maxwell,^^  and  John  C.  Spencer.^^ 


Massachusetts 

While  the  names  of  the  lawyers  of  Pennsylvania,  Mary- 
land and  the  Southern  States  were  known  through  the 
country,  the  Bar  of  New  England  remained,  for  at  least 
twenty  years  after  the  Revolution,  isolated  and  local  in 
character  and  fame. 

Nevertheless,  the  lawyers  practising  in  this  section  of 
the  country  were  men  of  ability  quite  equal  to  those  of 

*  See  History  of  the  Bench  and  Bar  of  New  York  City,  by  Benjamin  D. 
Sniiman  (1869).  See  also  Pleasantries  about  Courts  and  Lawyers  of  New 
York,  by  Charles  Edwards  (1887);  Magazine  of  American  History,  Vol. 
XIII  (1885),  article  by  Hon.  C.  P.  Daly;  see  also  The  Bench  and  Bar  of 
New  York,  by  L.  B.  Proctor  (1870). 

2  Bom  in  1769. 

'  Bom  in  1769,  graduate  of  Columbia  1786,  studied  law  under  S.  Jones, 
United  States  Senator  1802,  Govemor  181 7-1828. 

*  Bom  in  1780,  Judge  Supreme  Court  1822-1829. 

*  Bom  in  1776,  graduate  of  Columbia  1794. 

*  Born  in  1773,  Judge  Supreme  Court  1847-1855. 
'  Bom  in  1784. 

8  Bom  in  1778,  Yale  1797. 

*  Bom  in  1782. 
"  Bora  in  1773. 

"  Bom  in  1782,  Chief  Justice  Superior  Court  1857. 
^  Bom  in  1785. 
"  Bom  in  1787. 
"  Bora  in  1788. 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    305 

the  better  known  Bars.  Several  factors  however  contributed 
to  this  isolation.  Previous  to  1800,  the  difficulty  of  com- 
munication between  the  States  was  a  serious  obstacle. 
After  that  date,  the  extreme  Federalism  of  their  politics 
kept  the  New  England  lawyers  out  of  touch  with  the  Re- 
publican leaders  of  the  Bar  at  Washington.  The  length 
of  the  journey  necessary  to  attend  the  Supreme  Court  was 
also  a  serious  obstacle. 

The  influence  of  the  political  situation  was  most  marked 
on  the  Massachusetts  Bar;  and  for  that  reason  a  descrip- 
tion of  some  of  its  great  leaders  will  throw  light  upon  the 
legal  conditions  of  the  time. 

Boston  and  the  large  towns  of  Massachusetts  were 
Federal  to  the  backbone.  The  clergy,  the  merchants,  and 
most  of  the  Bar,  all  united  in  that  political  belief.  Party 
lines  were  rigidly  and  rancorously  drawn,  and  nowhere 
more  so  than  at  the  Bar;  so  that  clients  frequently  retained 
counsel  because  of  their  political  affiliations  rather  than 
their  legal  ability.  "The  democrat  had  no  caste,  he  was 
not  respectable,"  writes  Henry  Adams.  "When,  in  1793, 
the  French  nation  seemed  mad  with  the  frenzy  of  its  re- 
covered liberties,  New  England  looked  upon  the  bloody 
and  blasphemous  work  with  such  horror  as  religious  citizens 
could  but  not  feel.  Thenceforward  the  mark  of  a  wise  and 
good  man  was  that  he  abhorred  the  French  Revolution 
and  believed  democracy  to  be  its  cause."  ^ 

In  1800,  when  the  approaching  victory  of  Jefferson  was 
seen  to  be  inevitable,  the  clergy  and  a  large  proportion  of 
the  educated  citizens  of  New  England  began  to  feel  towards 
the  National  Government  the  same  distrust  which  they 
bore  to  democracy  itself;  and  they  agreed  in  general  \\'ith 
George  Cabot,  the  leader  of  the  Federalists  of  Massachu- 
setts and  head  of  the  so-called  "Essex  Junto,"  when  he 
1  History  of  the  United  States,  by  Henry  .\dams,  Vol.  I. 


3o6  A  HISTORY  OF  THE  AMERICAN  BAR 

said:  "I  hold  democracy  in  its  natural  operation  to  be  the 
government  of  the  worst."  ^  And  when  the  Democratic 
(or  Republican)  electorate  was  begirming  to  increase  in 
size  and  power  even  in  Boston,  Fisher  Ames  wrote  to 
Christopher  Gore  in  1799: 

"The  Jacobins  in  the  vicinity  of  Boston  are  as  openly 
bitter  as  ever  and  on  the  whole  the  rabies  canina  of  Jacob- 
inism has  gradually  spread  of  late  years  from  the  cities  where 
it  was  confined  to  the  docks  and  mob,  to  the  country  .  .  . 
all  that  is  base  is  of  course  Jacobin  and  all  that  is  prejudice 
and  jealousy  and  rancor." 

To  be  an  Anti-Federalist  or  "Jacobin,"  in  Eastern 
Massachusetts,  prior  to  1800,  meant  social  and  business 
ostracism.  "In  my  childhood,"  wrote  Theophilus  Parsons, 
the  yoimger,  "Federalists  and  Jacobins  very  seldom,  I 
believe,  met  in  society.  I  never  saw  one  until  I  was  ten 
years  old,  in  1807."  ^  Of  the  Essex  Bar  m  1801,  Joseph 
Story  wrote: 

"At  the  time  of  my  admission,  I  was  the  only  lawyer 
within  its  pale  who  was  either  openly  or  secretly  a  Democrat. 
Essex  was  at  that  time  almost  exclusively  Federal,  and 
party  politics  were  inexpressibly  violent  —  all  the  lawyers 
and  all  the  judges  in  the  county  were  Federalists." 

This  obstinate  disbelief  in  the  possibility  of  any  good 
coming  from  the  new,  democratic,  American  spirit  re- 
tarded the  intellectual  growth  of  Massachusetts  in  many 
directions;  and  the  conservative,  English,  anti- American 
atmosphere  greatly  influenced  the  development  of  the 
Bar,  tending  to  nurture  lawyers  steeped  in  the  Common 
Law,  but  less  in  touch  with  the  growing  independence  of 
thought  characteristic  of  the  Bars  of  such  States  as  Penn- 
sylvania, Maryland  and  Virginia. 

»  Cabot  to  T.  Pickering,  Feb.  14,  1804,  quoted  in  Life  aiid  Times  of 
George  Cabot,  by  Henry  Cabot  Lodge. 

*  Memoirs  of  Theophilus  Parsons,  by  T.  Parsons  (1859). 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    307 

In  February,  1781,  the  following  rule  had  been  made  by 
the  Superior  Court  of  Judicature,  —  the  first  order  relat- 
ing to  lawyers  made  by  the  Court  after  Massachusetts 
became  a  State: 

"Whereas  learning  and  literary  accomplishments  are 
necessary  as  well  to  promote  the  happiness  as  to  preserve 
the  freedom  of  the  people,  and  the  learning  of  the  law 
when  duly  encouraged  and  rightly  directed,  being  as  well 
peculiarly  subservient  to  the  great  and  good  purpose 
aforesaid,  as  promotive  of  public  and  private  justice; 
and  this  court  being  at  all  times  ready  to  bestow  peculiar 
marks  of  approbation  upon  the  gentlemen  of  the  bar,  who, 
by  a  close  application  to  the  study  of  the  science  they 
profess,  by  a  mode  of  conduct  which  gives  a  conviction 
of  the  rectitude  of  their  minds  and  a  fairness  of  practice 
that  does  honor  to  the  profession  of  the  law,  shall  dis- 
tinguish themselves  as  men  of  science,  honour  and  integrity: 
Do  order  that  no  gentleman  shall  be  called  to  the  degree 
of  Barrister  until  he  shall  merit  the  same,  by  his  conspicu- 
ous learning,  ability  and  honesty;  and  that  the  Court  will, 
of  their  own  mere  motion  call  to  the  Bar  such  persons  as 
shall  render  themselves  worthy  as  aforesaid;  and  that  the 
manner  of  calling  barristers  shall  be  as  follows :  The  gentle- 
man who  shall  be  a  candidate  shall  stand  within  the  bar. 
The  Chief  Justice,  or  in  his  absence,  the  senior  justice, 
shall,  in  the  name  of  the  Court,  repeat  to  him  the  qualifi- 
cations necessary  for  a  Barrister  of  the  Law;  shall  let 
him  know  that  it  is  a  conviction  in  the  mind  of  the  Court 
of  his  being  possessed  of  these  qualifications  that  induces 
them  to  confer  this  honour  upon  him;  and  shall  solemnly 
charge  him  so  to  conduct  himself  as  to  be  of  singular  ser- 
vice to  his  country  by  exerting  his  abilities  for  the  defence 
of  her  constitutional  freedom;  and  to  demean  himself 
as  to  do  honour  to  the  Court  and  Bar." 

After  1784,  no  barristers  were  called  by  the  Court;  and 
in  1806  the  Supreme  Judicial  Court  adopted  a  rule  sub- 
stituting counsellors  for  barristers  as  follows: 


3o8  A  HISTORY  OF  THE  AMERICAN  BAR 

''Ordered  —  First,  no  attorney  shall  do  the  business  of  a 
counsellor  unless  he  shall  have  been  made  or  admitted 
as  such  by  the  Court. 

"  Second,  all  attorneys  of  this  Court  who  have  been  ad- 
mitted three  years  before  the  sitting  of  this  Court  shall 
be  and  hereby  are  made  counsellors  and  are  entitled  to  all 
the  rights  and  prixdleges  of  such. 

"  Third,  no  attorney  or  counsellor  shall  hereafter  be  ad- 
mitted without  a  previous  examination." 

As  late  as  1800,  the  Boston  Bar,  though  distinguished 
in  quaUty,  was  small  in  number.  It  consisted  of  only 
thirty-three  lawyers,  of  whom  twenty  were  attorneys  of 
the  Supreme  Court,  eight  attorneys  of  the  Court  of  Common 
Pleas,  and  five  barristers,  James  Sullivan,  Theophilus 
Parsons,  William  Tudor,  Perez  Morton  and  Shearjashub 
Bourne.  An  interesting  view  of  the  Bar  of  that  period  is 
found  in  a  letter  from  Fisher  Ames  to  Christopher  Gore, 
v/ho  was  contemplating  resuming  practise  in  Boston, 
October  5,  1802  :^ 

"Your  share  will  be  made  up  of  insurance  cases  — 
questions  which  our  bankrupt  law  is  sowing  for  the  harvest 
of  1804.  .  .  .  Mr.  Parsons  practises  on  this  large  scale, 
and,  I  will  add,  fees  are  infinitely  better  than  they  were 
in  1786.  .  .  .  Who  are  the  rivals  for  this  business  with 
whom  you  must  divide  the  booty?  Parsons  stands  first, 
but  he  is  growing  older,  less  industrious,  and  wealth  or 
the  h>T30  may  stop  his  practice.  Otis  is  eager  in  the  chase 
of  fame  and  wealth,  and  with  a  great  deal  of  eloquence 
is  really  a  good  lawyer  and  improving.  Dexter  is  very 
able  and  will  be  an  Ajax  at  the  Bar  as  long  as  he  stays. 
You  know  however  that  his  aversion  to  reading  and  to 
practice  is  avowed.  His  head  aches  on  reading  a  few  hours, 
and  if  he  did  not  love  money  very  well  he  would  not  pursue 
the  law.  Sullivan,  who  seems  immortal  .  .  .  will  not  be  in 
our  v.ay.  John  Lowell's  health  is  wretched.  A  number  of 
eminent  lawyers  will  be  wanted  in  Boston;    and  though 

1  See  Life  and  Works  of  Fisher  Ames  (1854). 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    309 

the  place  is  overstocked  I  think  the  prospect  for  1804  not 
unhopeful.  I  know  of  no  very  dashing  young  men  coming 
forward." 

Of  the  members  of  the  Bar  thus  mentioned,  Fisher  Ames 
was  bom  in  1758,  a  Harvard  graduate  of  1774,  and  had 
studied  law  in  the  office  of  William  Tudor.  The  Nestor 
of  law>'ers  during  the  twenty  years  after  the  Revolution 
was  James  Sullivan,  who  shared  with  Theophilus  Parsons 
the  leadership  of  the  Bar.^  Born  in  1744,  he  had  fought 
as  a  general  in  the  War,  and  served  as  Judge  of  the 
Superior  and  of  the  Probate  Court  for  a  few  years.  From 
1790  to  1807  he  was  Attorney-General  of  the  State,  in 
spite  of  the  fact  that,  unlike  all  his  competitors  at  the 
Bar,  he  was  strongly  Anti-Federalist  in  politics.  He  was 
also  the  author  of  the  first  comprehensive  American  book  on 
real  estate  law  —  Land  Titles,  in  1801.  John  Lowell  was 
the  son  of  the  elder  John  Lowell  who  was  the  first  United 
States  District  Judge  in  Massachusetts.  He  was  born  in 
1769.  After  1803  he  retired  from  active  practise,  but  be- 
came widely  known  as  the  keenest  writer  among  the  hot 
Federalists  of  New  England.  He  was  appointed  the  first 
professor  of  law  at  Harvard  College  in  1815,  but  declined. 

With  the  exception  of  James  Sullivan,  Samuel  Dexter 
had  the  largest  practise  of  the  Massachusetts  lawyers  of 
the  early  Nineteenth  Century,  and  his  name  appears  in 
most  of  the  important  cases  in  the  early  Massachusetts 
Reports?  He  was  bom  in  1761,  graduated  from  Harvard 
in  1 781,  and  studied  law  under  Levi  Lincoln  (later  Attorney- 
General  of  the  United  States).  In  1799,  he  was  United 
States  Senator;  in  1800,  Secretary  of  State  and  Secretary 
of  the  Treasury  under  President  Adams. 

*  See  Life  of  James  Sullivan,  by  R.  G.  Amory. 

*  For  the  best,  though  incomplete,  sketch  of  Samuel  Dexter,  see  Remi- 
niscences of  Samuel  Dexter,  by  Lucius  Manlius  Sargent  ("Sigma")  (1857). 


3IO  A  HISTORY  OF  THE  AMERICAN  BAR 

Of  all  Massachusetts  lawyers,  Dexter's  services  were 
most  sought  in  argument  of  cases  at  Washington,  in  the 
early  years  of  the  United  States  Supreme  Court.  And  it 
was  into  his  place  that  Daniel  Webster  may  be  said  to 
have  stepped,  on  Dexter's  death,  in  1816.  "For  several 
years,"  said  Joseph  Story,  "he  passed  his  winters  in  Wash- 
ington under  engagement  in  many  of  the  most  important 
cases.  Rarely  did  he  speak  without  attracting  an  audience 
composed  of  the  taste,  the  beauty,  the  wit  and  the  learn- 
ing that  adorned  the  city."  Just  before  his  death  in  1816, 
he  argued  for  the  State  of  Virginia,  with  St.  George  Tucker, 
the  great  case  of  Martin  v.  Hunter's  Lessee,  in  which  Judge 
Story  settled,  against  Dexter's  contention,  the  power  of 
the  Federal  Supreme  Court  to  review  the  decision  of  a 
State  court  on  writ  of  error. 

Like  John  Marshall,  Dexter  relied  on  his  supreme  power 
of  reasoning  rather  than  on  precedents  and  citation  of 
cases.  So  much  was  this  his  habit  that  William  Plumer 
relates  an  argument  used  by  him  in  a  case  against  Parsons 
which  might  almost  be  thought  the  argument  of  one  of 
the  unlearned  lawyers  of  the  times.  "The  law  in  this  case 
is  as  I  have  explained  it,"  said  Dexter,  "and  it  lies,  as 
your  Honors  see,  in  the  compass  of  a  nutshell.  My 
brother  Parsons  has  here  a  basket  full  of  law  books;  and 
he  will  endeavor  to  show  from  them  that  it  is  all  the  other 
way.  But  one  plain  dictate  of  common  sense,  one  clear 
maxim  of  the  Common  Law  is  worth  a  cartload  of  such 
rubbish." 

"He  had  a  disinclination,"  said  Story,  "to  black-lettered 
law,  which  he  sometimes  censured  as  the  scholastic  refine- 
ments of  monkish  ages;  and  even  for  the  common  branches 
of  technical  science,  the  doctrines  of  special  pleading,  and 
the  niceties  of  feudal  tenure  he  professed  to  feel  little  of 
love   or   reverence.  ...  In   commercial  causes,  he   shone 


■'   STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    311 

with  peculiar  advantage.  .  .  .  Though  he  might  be  wrong 
upon  authority  and  practise,  he  was  rarely  wrong  upon 
the  principles  of  international  justice.  No  man  was  ever 
more  exempt  from  fineness  or  cunning  in  addressing  a 
jury.  He  disdained  the  little  arts  of  sophistry  or  popular 
appeal.  It  was  in  his  judgment  something  more  degrading 
than  the  sight  of  Achilles  playing  with  a  lady's  distaff." 

Perhaps  the  best  and  liveliest  description  of  his  man- 
ner as  a  lawyer  is  found  in  Story's  letter  to  his  wife, 
March  10,  1814,  describing  the  contests  between  William 
Pinkney  of  Maryland  and  Dexter,  in  a  series  of  prize  cases : 

"I  must,  however,  after  all,  give  the  preference  to  Mr. 
Pinkney's  oratory.  He  is  more  vivacious,  sparkling,  and 
glowing;  more  select  and  exact  in  his  language,  more 
polished  in  his  style,  and  more  profound  and  earnest  in 
his  judicial  learning.  Mr.  Dexter  is  calm,  collected,  and 
forcible,  appeahng  to  the  judgment.  Mr.  Pinkney  is 
vehement,  rapid,  and  alternately  dehghts  the  fancy  and 
seizes  on  the  understanding.  He  can  be  as  close  in  his 
logic  as  Mr.  Dexter  when  he  chooses;  but  he  can  also  step 
aside  at  will  from  the  path,  and  strew  flowers  of  rhetoric 
around  him.  Dexter  is  more  uniform,  and  contents  himself 
with  keeping  you  where  you  are.  Pinkney  hurries  you 
along  with  him,  and  persuades  as  well  as  con\dnces  you. 
You  hear  Dexter  without  effort;  he  is  always  distinct  and 
perspicuous,  and  allows  you  an  opportunity  to  weigh  as 
you  proceed.  Pinkney  is  no  less  luminous,  but  he  keeps 
the  mind  on  the  stretch,  and  you  must  move  rapidly  or 
you  lose  the  course  of  his  argument." 

Of  all  the  lawyers  in  Massachusetts,  the  most  profound 
in  learning  and  weighty  in  argument,  both  at  the  Bar  and 
on  the  Bench,  was  Theophilus  Parsons. 

Parsons  was  born  in  1750  and  graduated  from  Harvard 
in  1769.^  He  studied  law  at  Portland,  Maine  (then  Fal- 
mouth), under  Theophilus  Bradbury,  and  was  admitted 
to  practise  in  1774.    Portland  being  almost  totally  burned 

■  Memoirs  of  Theophilus  Parsons,  by  T.  Parsons. 


312  A  fflSTORY  OF  THE  AMERICAN  BAR 

by  the  British,  in  1775  he  removed  to  Newburj-port,  Massa- 
chusetts, and  in  1800,  to  Boston. 

His  eariy  success  was  as  a  master  of  prize  and  admiralty 
law,  "of  which,"  writes  his  son,  "few  lawyers  then  knew 
anything.  In  fact  he  had  almost  the  monopoly  of  it  and 
it  was  very  profitable.  The  late  Governor  Sullivan,  Judge 
Lowell,  and  my  father  were  the  only  practising  lawyers 
who  had  much  knowledge  of  it.  .  .  .  My  mother  used 
to  speak  of  the  'prize  times'  as  the  most  profitable  which 
she  had  ever  known." 

"He  was  the  most  learned  lawyer  of  his  time  and  was 
called  the  giant  of  the  law. .  .  .  He  comprised  in  his  pro- 
fessional attainments  among  other  things  a  full  and  accu- 
rate knowledge  of  the  common  law,  civil,  martime  and 
ecclesiastical  law,  the  law  merchant,  the  statute  and  common 
law  of  his  own  country,  and  the  law  of  nations.  From 
the  methodical  order  of  his  mind,  all  he  knew  was  ever 
famiharly  at  his  command.  His  speeches  to  juries  and 
judges  were  neither  eloquent  nor  elegant  in  anything  but 
pertinency  and  argument.  They  were  never  long.  It  is 
not  remembered  that  he  ever  used  a  brief." 

Thus  wrote  Chief  Justice  Isaac  Parker,  his  successor. 

In  February,  1801,  he  was  nominated  as  United  States 
Attorney-General  by  President  Adams,  in  place  of  Charles 
Lee,  but  though  confirmed  by  the  Senate,  he  declined  the 
appointment. 

In  1806,  he  was  appointed  Chief  Justice  of  Massa- 
chusetts; and  from  that  time  until  his  death,  in  18 13,  his 
judgments  laid  the  foundations  for  a  great  portion  of  the 
law  of  Massachusetts. 

"But  few  pages  of  the  early  reports  can  be  read  without 
finding  illustrations  of  the  fact  that  immemorial  usage 
and  early  Colonial  and  Provincial  statutes  had  upon  a 
vast  variety  of  subjects  almost  created  a  law  of  our  own. 
Judge  Parsons  was  precisely  the  man  to  learn,  appreciate 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    313 

and  apply  this  local  jurisprudence;  and  his  happiest 
efforts  are  those  in  which  perhaps  by  way  of  reply  to  learned 
arguments  of  counsel  founded  upon  the  text  of  the  English 
law  he  adduces  unanswerable  enactments  and  precedents 
to  disprove  its  binding  authority  in  the  State  of  Massa- 
chusetts. In  such  cases  we  see  the  thoroughly  practical 
man  conversant  with  all  sorts  of  things  and  familiar 
with  all  sorts  of  people;  the  man  who,  endowed  by 
nature  with  extraordinary  capacities  which  study  and 
learning  had  indefinitely  improved  and  developed,  al- 
lowed none  of  the  innumerable  occasions  to  pass  when 
he  was  brought  into  contact  with  the  others  without 
making  some  important  addition  to  his  stock  of  available 
knowledge."  ^ 

''Such  was  the  veneration  of  the  Bar  for  him  as  a  lawyer 
that  they  exhibited  an  unusual  awe  in  his  presence.  There 
was  great  neglect  (then)  in  preparing  papers  for  the  court, 
and  it  was  several  years  before  it  was  properly  attended 
to;  and  I  have  seen  him  non-suit  our  oldest  counsellor 
for  that  cause  very  often.  He  had  not  much  patience 
to  hear  an  unsound  argument  nor  to  hear  counsel  advance 
an  untenable  point;  and  the  lawyers  were  so  poorly  versed 
in  legal  lore  they  were  not  only  willing  but  desirous  that 
he  should  take  the  disposal  of  the  whole  case  into  his  own 
hands.    I  have  known  him  many  times  to  do  this." 

So  said  one  of  his  contemporaries.^ 

There  is  little  doubt  however  that  the  slack  methods  of 
the  Bar  needed  a  strong  hand  to  correct  them;  and  prob- 
ably Parsons'  retort  to  the  famous  Samuel  Dexter  was  well 
grounded.  Dexter,  being  stopped  in  an  argument  by  the 
Judge's  remark  that  he  was  trying  to  persuade  the  jury 
of  that  for  which  there  was  no  evidence,  replied:    "Your 

1  See  The  Jurisprudence  of  Massachusetts,  Central  Law  Journal,  Vol.  I 
(1874);   see  also  American  Jurist,  Vol.  Ill  Qan.,  1830). 

See  also  Parsons  in  Biographical  Sketches  of  Eminent  Lawyers,  by  S.  L. 
Knapp  (1821). 

*  See  Letter  of  Zachariah  Eddy  to  Professor  Emory  Washburn,  in  1851, 
in  Memoirs  of  Theophilus  Parsons,  by  T.  Parsons. 


314  A  HISTORY  OF  THE  AMERICAN  BAR 

Honor  did  not  argue  your  own  cases  in  the  way  you  require 
us  to."  "Certainly  not,"  was  the  reply,  "but  that  was 
the  judge's  fault,  not  mine." 

"No  sooner  had  he  taken  his  seat  upon  the  bench  than 
the  whole  air  of  the  court  room  seemed  charged  with  a 
terrible  energy.  No  excuse  was  listened  to;  no  delay 
was  admitted.  The  dropsical  dockets  rapidly  shrank, 
when  gashed  by  the  unsparing  lancet  of  the  new  Chief. 
The  lawyers  at  first  grumbled;  but  suitors  were  better 
pleased,  and  the  great  improvement  effected  soon  recon- 
ciled all  persons  to  the  new  system."^ 

The  name  of  Harrison  Gray  Otis  stands  well  to  the 
front  of  the  brilliant  Federalist  lawyers  and  orators.^ 
Born  in  1765,  graduating  from  Harvard  in  1783,  a  class- 
mate of  the  noted  lawyers,  Ambrose  Spencer  (later  Chief 
Justice  of  New  York),  William  Prescott,  Artemas  Ward, 
and  William  King  Atkinson  of  New  Hampshire,  he  studied 
in  the  office  of  Judge  John  Lowell,  became  United  States 
District- Attorney  in  1801  and  United  States  Senator  from 
1817  to  1822.  In  the  early  Massachusetts  Reports  his 
name,  with  that  of  Charles  Jackson,  rivals  even  Dexter's 
in  number  of  appearances.  Unlike  either  Parsons  or 
Dexter,  it  Was  on  the  charm  of  his  manner  and  the  eloquence 
of  his  speech  that  Otis  depended  for  his  success. 

Besides  the  above,  the  following  lawyers  were  dis- 
tinguished at  the  Bar  during  the  first  quarter  of 
the   Nineteenth    Century  —  William    Prescott,^    Christo- 

1  The  Bench  and  Bar,  by  John  T.  Morse.     Memorial  Ilisl.  of  Boston, 

Vol.  IV. 

*  See  Harrison  Gray  Otis  in  Memorial  Biographies  of  N.  E.  Hist.  Gen. 

Sac,  Vol.  I  (1880). 

«  One  of  Parsons'  "most  valued  friends,"  and  a  lawyer  of  great  depth 
and  soundness  of  learning  and  e.xclusive  devotion  to  law  was  William  Pres- 
cott of  Salem.  He  was  also  the  friend  of  young  Joseph  Story,  the  father  of 
William  H.  Prescott  the  historian,  and  the  father-in-law  of  Franklin  Dexter. 
Bom  in  1762,  a  Harvard  graduate  in  1783,  he  was  a  favorite  maritime  and 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    315 

pher  Gore/  Charles  Jackson,^  Edward  St.  Loe  Liver- 
more,^  William  Sullivan,''  Samuel  Hoar,^  Artemas  VVard^ 
and  John  Phillips,^  all  of  whom  were  Federalists. 

Of  a  younger  generation,  the  most  famous  of  all  Massa- 
chusetts lawyers  of  the  time  was  Joseph  Story.  He  was 
born  in  1779  in  the  seaport  fishing  town  of  Marblehead. 
To  become,  in  later  life,  the  great  American  Judicial  master 
of  prize  and  admiralty  law  was,  therefore,  only  his  brith- 
right.  Graduating  from  Harvard  College  in  1798,  he  was 
admitted  to  the  Essex  Bar  in  180 1.  "All  the  lawyers  and 
all  the  judges  in  the  County  of  Essex  were  Federalists," 
he  wrote,  "and  I  was  the  first  who  obtruded  upon  it  as  a 

insurance  lawyer.  It  was  in  his  office,  in  18 15,  that  Theophilus  Parsons  the 
younger  (later  Professor  in  the  Harvard  Law  School)  studied.  Of  him,  Story 
wrote  in  1820,  in  his  article  on  Chancery  Jurisdiction:  "His  cautious,  well 
instructed,  modest  and  powerful  mind  would  adorn  an  equity  bench  and 
create  an  equity  bar  for  Massachusetts,  equal  to  the  Chancery  Court  of 
James  Kent." 

'  Born  in  1758,  a  Harvard  graduate  of  1776,  a  student  of  law  in  the  office 
of  John  Lowell,  United  States  District-Attorney  in  1789,  a  Commissioner 
of  the  United  States  to  London  on  the  British  Spoliation  Claims  in 
1796,  Governor  of  Massachusetts  in  1809,  United  States  Senator  1813- 
1816. 

2  Bom  in  1775,  a  Harvard  graduate  of  1793,  a  student  of  law  in  the 
office  of  Theophilus  Parsons,  Judge  of  the  Massachusetts  Supreme  Court 
in  1813. 

"Of  all  my  pupils,"  said  Parsons,  "no  one  has  left  my  office  better  fitted 
for  his  profession.  He  will  prove  himself  the  .American  Blackstone."  See 
Life  of  Charles  Jackson  in  Law  Reports,  Vol.  XHL 

3  Born  in  1762  in  Portsmouth,  New  Hampshire,  a  student  of  law  in 
Theophilus  Parsons*  office.  Judge  of  the  New  Hampshire  Supreme  Court  in 
1799,  and  afterwards  practising  law  in  Boston,  especially  in  maritime  cases. 

*  Born  in  1774,  a  son  of  James  Sullivan,  Harvard  graduate  1792,  studied 
law  with  his  father. 

*  Bom  in  1788,  Harvard  1802,  a  student  in  the  office  of  .\rtemas  Ward, 
for  many  years  the  leader  of  the  Middlesex  County  Bar. 

«  Born  in  1762,  Harvard  1783,  brother-in-law  of  Samuel  Dexter,  Chief 
Justice  of  the  Court  of  Common  PlcvOs  in  1821. 

^  Bora  in  1770,  Harvard  178S,  Judge  of  the  Court  of  Common  Plea?  in 
1809,  first  Mayor  of  Boston  in  1822. 


3i6  A  HISTORY  OF  THE  AMERICAN  BAR 

political  heretic.     I  was  not  a  little  discouraged"  as  the 
only  lawyer  of  Republican  politics. 

Such,  however,  was  Story's  evident  ability,  that  even 
ardent  Federalists  like  William  Prescott,  one  of  the  leaders 
of  the  Bar,  and  Judge  Sewall,  in  whose  ojfice  Story  studied, 
were  forced  to  admit  that  political  ostracism  could  not 
last  long.  "It  is  vain,"  said  Sewall  to  Chief  Justice  Par- 
sons, "to  attempt  to  put  down  young  Story.  He  will  rise, 
and  I  defy  the  whole  Bar  and  Bench  to  prevent  it." 

His  earliest  cases  developed  his  remarkable  knowledge 
of  the  law,  and  before  he  was  thirty-two  he  had  edited 
editions  of  four  law  books,  which  were  among  the  earliest 
American  productions  of  a  legal  nature:  a  work  on  Plead- 
ing, in  1805;  Chitty  on  Bills  and  Notes,  in  1809;  Abbott  on 
Shipping,  in  18 10;  and  Lawes  on  Pleading  in  Assumpsit, 
in  1811. 

By  the  time  he  was  twenty-six,  Story  was  retained  as 
counsel  in  cases  in  adjoining  States,  and  especially  in 
New  Hampshire.  He  served  in  the  Legislature  with  dis- 
tinction from  1800  to  1808,  and  was  elected  to  Congress 
in  the  latter  year.  Visits  to  New  York  and  Washington 
in  1807-1808  enabled  Story  to  see  something  of  the  Bar 
of  other  States.  He  visited  the  New  York  Supreme  Court, 
sitting  at  City  Hall,  and  was  struck  by  Chief  Justice  Kent's 
celerity  and  acuteness.  "He  seems  to  be  a  good  lawyer 
and  despatches  business  with  promptness.  ...  On  the 
whole,  if  he  be  not  a  very  great  man,  I  am  satisfied  he  is 
not  humble  in  his  acquirements.  He  has  the  confidence 
of  a  great  lawyer  in  all  his  actions,  and  is  self  poised  on 
his  own  resources,"  he  wrote;  and  he  referred  to  the  Bar 
of  New  York  as  "it  is  confessed  not  to  be  equal  to  what 
it  has  been.  Its  splendor  has  been  obscured  since  Burr, 
Livingston  and  Hamilton  have  departed,"  and  he  is  satis- 
fied that  "Massachusetts  has  legal  talents  and    juridical 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND  .317 

learning  equal  to  any  of  her  sisters  on  this  side  of  the  Dela- 
ware. What  lies  beyond  is  now  but  speculation."  In 
Baltimore,  he  met  all  the  great  lawyers,  except  Luther 
Martin.  "They  do  not  look  like  black-lettered  scholars 
of  the  Inns  of  Court;  but  are  pleasant  and  frank  in  their 
manners,  and,  as  I  understand,  well  versed  in  the  general 
subjects  of  juridical  consideration."  With  Robert  Goodloe 
Harper  he  visited  Judge  Samuel  Chase,  whom  he  de- 
scribed: "In  his  person  he  is  tall  and  not  unlike  Parsons. 
I  suspect  he  is  the  American  Thurlow  —  bold,  impetuous, 
overbearing  and  decisive." 

In  1810,  Story  argued  the  famous  case  of  Fletcher  v. 
Peck  before  the  Supreme  Court  in  Washington,^  and  he 
was  re-elected  to  the  Massachusetts  Legislature.  While 
serving  as  Speaker,  he  was  appointed  Justice  of  the  United 
States  Supreme  Court  to  fill  the  vacancy  caused  by  Judge 
Cushing's  death,  as  described  in  a  previous  chapter. 

The  appointment  of  Story  was  not  received  with  general 
enthusiasm.  Among  his  political  opponents  it  was  ridi- 
culed and  condemned  —  "that  Republican  politician,  Joe 
Story,"  as  they  called  him.  Others,  by  reason  of  his  youth 
and  active  political  course,  augured  a  host  of  evil  conse- 
quences. He  was  at  this  time  only  thirty- two  years  old  — ■ 
the  youngest  judge  on  the  bench,  and,  with  the  exception 

1  The  following  letter  from  George  Cabot  to  Timothy  Pickering,  Jan.  28, 
1808,  is  interesting  as  coming  from  a  vigorous  political  opponent.  The 
"Georgia  claimants"  referred  to  in  it  were  the  parties  involved  in  Fletcher 
V.  Peck. 

"Islx.  Joseph  Story  of  Salem  goes  to  Washington  as  solicitor  for  the 
Georgia  claimants.  Though  he  is  a  man  whom  the  Democrats  support,  I 
have  seldom  if  ever  met  with  one  of  sounder  mind  on  the  principal  points  of 
national  policy.  He  is  well  worthy  the  civil  attention  of  the  most  respectable 
Federalists;  and  I  wish  3'ou  to  be  so  good  as  to  say  so  to  our  friend  Mr. 
Quincy  and  such  other  gentlemen  as  you  think  will  be  likely  to  pay  him 
some  attention." 

See  Life  and  Times  of  George  Cabot,  by  Henry  Cabot  Lodge  (1S70). 


3i8  A  HISTORY  OF  THE  AMERICAN  BAR 

of  Mr.  Justice  Buller  on  the  King's  Bench  in  England, 
the  youngest  man  then  ever  called  to  highest  judicial 
station  in  either  country. 

Josiah  Quincy,  Jr.,  writes,  in  his  Figures  of  the  Past:  "I 
remember  my  father's  graphic  account  of  the  rage  to 
the  FederaHsts  when  'Joe  Story,  that  country  petti- 
fogger, aged  thirty-two,'  was  made  a  judge  of  our  highest 
court." 

Among  the  few  other  Anti-Federalist  lawyers,  the  most 
notable  were  Levi  Lincoln,^  Daniel  Davis,^  George  Blake,^ 
John  Quincy  Adams  ^  and  Perez  Morton.^ 

Most  of  the  lawyers  above  referred  to  practised  in 
Boston;  but  in  other  parts  of  the  State  there  were  able 
Bars,  among  the  leaders  of  which  were  Eli  P.  Ashmun, 
Elijah  H.  Mills,  Samuel  Howe,  Caleb  Strong,  Benjamin 
Whitman,  Timothy  Bigelow,  and  Samuel  Dana,  Jr.;  and 
the  offices  of  these  members  of  the  Bar  outside  of  Boston 
were,  in  fact,  in  most  instances,  miniature  law  schools, 
as  students  often  came  from  the  surrounding  country- 
side to  reside  in  the  towns  where  these  law  offices  were 
located. 

Among  the  younger  members  of  the  Bar  just  coming 
into  practise  in  1815,  were  Lemuel  Shaw,^  Marcus  Morton,'' 

^  Born  in  1749,  a  Harvard  graduate  1772,  United  States  Attorney-General 
1801-1805. 

2  Born  in  1762,  a  student  under  ShearJEishub  Bourne,  Solicitor-General 
of  Massachusetts  1800-183  2. 

'  Born  in  1769,  Harvard  1789,  a  student  under  James  Sullivan,  United 
States  District-Attorney  1801-1829. 

<  Born  in  1767,  Harvard  1787,  a  student  under  Theophilus  Parsons. 

*  Born  in  1751,  Harvard  1771,  Massachusetts  Attorney-General  1810- 
1832. 

'  Born  in  1781,  a  Harvard  graduate  of  1800,  Chief  Justice  of  Massachu- 
setts 1830-1860. 

^  Bom  in  1784,  a  Brown  graduate  1804,  a  student  at  Litchfield  Law 
School,  Judge  of  the  Massachusetts  Supreme  Court  in  1825,  Governor  in 
1840. 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    319 

Charles  G.  Loring/  Peleg  Sprague,^   William  Minot^  and 
Franklin  Dexter.'* 

In  1816,  Daniel  Webster,  then  thirty-four  years  of  age, 
came  to  Boston  to  practise  law,  having  been  admitted  to 
the  Suffolk  Bar  in  1805,  and  to  practise  before  the  United 
States  Supreme  Court  in  the  winter  of  1813-1814. 


New  Hampshire 

In  New  Hampshire,  the  close  of  the  War  of  the  Revolution 
marked  an  epoch  in  the  history  of  the  courts  and  the  Bar. 

With  the  appointments  as  Chief  Justice  of  John  Picker- 
ing, who  sat  from  1790  to  1795,  and  of  Jeremiah  Smith  in 
1802,  the  law  as  laid  down  by  the  courts  became  for  the 
first  time  a  science.  "  Chief  Justice  Smith  found  the  law  of 
New  Hampshire  in  practise  and  administration,  a  chaos,  and 
left  it  comparatively  an  organized  and  scientific  system."  '" 

With  the  year  1786,  a  new  era  for  the  Bar  also  began. 
Though  still  small,  not  exceeding  twenty-nine  in  number,  it 
contained  a  large  proportion  of  exceedingly  eminent  lawyers. 

In  1786,  Jeremiah  Smith  began  practise  in  New  Hamp- 
shire. He  was  born  in  1759;  after  having  entered  at  Har- 
vard in  1777,  and  remained  for  two  years,  he  graduated 
from  Queens  (now  Rutgers  College),  and  studied  law  at  Barn- 
stable, Massachusetts,  with  Shearjashub  Bourne.  Jeremiah 
Mason,  who,  born  in  1768,  had  graduated  from  Yale 
in  1788  and  studied  law  in  Judge  Simeon  Baldwin's 
ofl&ce  at  New  Haven,  was  admitted  to  practise  in  1791, 

'  Bom  in  1794,  Harvard  1812,  a  student  at  the  Litchfield  Law  School 
and  in  the  oiSce  of  Charles  Jackson. 

*  Bom  in  1793,  Harvard  1812,  student  at  Litchfield  Law  School. 
'  Born  in  1783,  Har\'ard  1802. 

*  Born  in  1793,  son  of  Samuel  Dexter,  Harvard  181 2,  a  student  in  the 
oflSce  of  Samuel  Hubbard. 

*  See  Lisbon  v.  Lyman,  49  N.  H.  222. 


320  A  HISTORY  OF  THE  AMERICAN  BAR 

and  removed  to  Portsmouth  in  1798.  Nine  years  later, 
his  only  rival,  Daniel  Webster,  arrived  at  Portsmouth. 
Webster  was  born  in  1782,  graduated  at  Dartmouth  in 
1 80 1,  studied  in  New  Hampshire,  and  with  Christopher 
Gore  in  Boston  in  1804,  and  was  admitted  in  1805. 
With  them  may  be  mentioned  Arthur  Livermore,^  George 
Sullivan,2  Ichabod  Bartlett,^  William  King  Atkinson "  and 
William  Plumer.^ 

By  the  beginning  of  the  Nineteenth  Century,  the  Bar 
was  one  of  great  lustre,  so  that  even  Judge  Story  used  to 
speak  of  its  "vast  law  learning  and  prodigious  intellectual 
power."  ^    In  1805,  it  contained  106  lawyers,  of  whom  91 

1  Born  in  1776,  studied  with  his  brother  Edward  St.  Loe  Livermore,  Judge 
of  Superior  Court  1798,  Chief  Justice  in  1809. 

2  Bom  in  1771,  Harvard  graduate  of  1790,  studied  with  his  father  Gen. 
John  Sullivan. 

3  Born  in  1786,  Dartmouth  graduate  of  1808,  studied  with  Moses  East- 
man and  Parker  Noyes,  admitted  in  1812. 

«  Bom  1765,  Harvard  graduate  of  1783,  studied  with  John  Pickering, 
Judge  of  Superior  Court  1803,  Attorney-General  1807. 

^  Bom  1759,  studied  with  Joshua  Atherton,  admitted  1787. 

6  "There  were  giants  in  the  land  in  those  days.  It  was  customary  for 
the  advocates  whose  professional  aid  was  in  most  request  at  that  time  to 
attend  the  courts  from  county  to  county  through  the  State,  as  the  leading 
barristers  ride  the  circuit  in  England.  Every  important  trial  was  a  tour- 
nament in  which  these  celebrated  celebrities  were  matched  against  each 
other.  ...  In  the  ratio  of  her  population  New  Hampshire  has  contributed 
more  mental  and  more  moral  strength  to  the  Bar,  to  the  Senate  and  to  the 
Cabinet  of  the  country  than  any  other  State  in  the  Union.  That  was  the 
season  of  her  intellectual  greatness.  Ichabod  Bartlett,  the  Randolph  of 
the  North,  the  brilliant  flashes  of  whose  wit,  keen  sarcasm  and  pungent 
irony  gave  life  and  spirit  to  the  dry  judicial  discussions  —  Sullivan,  the 
fascination  of  whose  happy  eloquence  still  lingers  —  Fletcher,  whose  legal 
acumen,  clear,  distinct  and  precise  statement,  closely  reasoned  argument 
and  conscious  mastery  of  his  subject  adorn  no  less  the  bench  than  formerly 
the  bar.  Jeremiah  Mason,  that  counsellor  of  marvellous  sagacity,  unri- 
valled in  his  knowledge  of  human  nature,  and  Daniel  Webster.  The  collision 
of  such  minds  invigorated  and  sharpened  the  faculties  whose  native  temper 
was  competent  to  sustain  the  shock.  ...  It  was  in  this  school,  that 
Judge  Woodbury  formed  and  fixed  that  habit  which  he  ever  afterwards 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    321 

were  admitted  to  practise  in  the  Superior  Court,  and  77 
of  whom  were  college  graduates  —  from  Harvard  35,  Dart- 
mouth 34,  Yale  6,  Brown  2. 


Vermont 

The  settlers  in  the  New  Hampshire  Grants  (later  the 
State  of  Vermont),  were  chiefly  men  who  had  come  thither 
from  Connecticut,  Massachusetts  and  Rhode  Island,  for 
the  purpose  of  enjoying  greater  religious  freedom;  and 
they  had  an  instinctive  prejudice  against  the  institution 
of  courts,  which  they  conceived  as  controlled  by  the  clerical 
and  government  interests  in  the  Colonies  from  which  they 
had  emigrated.  To  such  an  extent  was  this  feeling  carried, 
that  the  Legislature  of  Vermont,  in  the  first  seven  years 
of  its  existence,  constituted  itself  a  Court  of  Chancery; 
and  passed  frequent  acts,  vacating  and  commuting  judg- 
ments of  the  courts,  and  forbidding  prosecutions  of  real  or 
possessory  actions  or  actions  on  contracts ;  and  while  this 
was  done  to  a  less  extent  after  the  Constitution  of  1786,  it 
still  kept  up  the  practise  of  granting  new  trials,  over  the 
heads  of  the  Courts. 

It  is  not  surprising  that,  under  these  conditions,  neither 
great  lawyers  nor  judges  were  produced  in  Vermont 
at  this  time,  and  that,  as  Mason  says  in  his  Auto- 
biography : 

"The  courts  of  Vermont  then  were  badly  organized 
and  usually  filled  with  incompetent  men.  Most  of  the 
members  of  the  Bar  were  poorly  educated  and  some  of  vulgar 
manners  and  indifferent  morals.  Casting  these  circum- 
stances over,  I  entertained  serious  thoughts  of  transferring 

retained  —  which  is  the  first  need  though  the  rarest  accomplishment  of  an 
American  statesman,  to  think  continently." 

Eulogy  on  Justice  Lem  Woodbury,  by  Robert  Rantoul,  Oct.  16,  1851, 
Law  Reporter,  Vol.  XIV  (1851). 


322  A  HISTORY  OF  THE  AMERICAN  BAR 

my  allegiance  to  the  State  of  New  Hampshire.  Tlie  courts 
of  the  two  States  were  nearly  on  an  equahty  as  to  learning 
and  talent,  but  those  of  New  Hampshire  had  greatly  the 
advantage  in  point  of  purity  and  integrity.  The  Bar  of 
New  Hampshire  also  were  more  orderly,  better  educated, 
and  of  better  manners." 

There  were,  however,  in  1790,  a  few  men  of  great  ability 
at  the  Bar,  like  Charles  Marsh,^  Stephen  R.  Bradley,^ 
Stephen  Jacob,  Royall  Tyler  (later  Chief  Justice)  ^  and 
Elijah  Paine  (later  United  States  District  Judge)  .^ 

Connecticut 

In  Connecticut,  the  Bar  increased  in  numbers  very 
greatly  after  the  Revolution;  and  a  Bar  Association  of 
thirty- two  members  was  formed  for  the  first  time  in  1783 
in  Hartford  County.  Noah  Webster  wrote  in  1 787 :  "Never 
was  such  a  rage  for  the  study  of  the  law.  From  one  end 
of  the  continent  to  the  other,  the  students  of  this  science 
are  multiplying  without  number,"  and  he  stated  that  on 
the  docket  of  Oliver  Ellsworth,  in  whose  office  he  studied, 
there  were  frequently  from  one  thousand  to  fifteen  hundred 
cases  at  a  time.  These  cases  were  small,  however,  and 
brought  in  small  fees;  and  Jeremiah  Mason,  who  studied 
in  the  office  of  Simeon  Baldwin  at  New  Haven  in  1789, 
wrote:  "The  time  was  a  period  of  extreme  depression 
and  poverty  throughout  the  country.  .  .  .  The  profession 
of  law  felt  this  depression  severely.  The  State  of  Con- 
necticut was  overstocked  with  lawyers.     Most  of  them 

^  Bom  1765,  graduate  of  Dartmouth  in  1786,  student  at  Litchfield  Law 
School,  United  States  District-Attorney  1797. 

2  Born  1754,  Yale  graduate  of  1775. 

'  Born  1757,  studied  with  John  Adams,  1794  Judge  of  Supreme  Court, 
1800  Chief  Justice. 

«  Bom  1757,  Harvard  graduate  1781,  admitted  to  the  Bar  in  1784,  Judge 
of  Supreme  Court  1791-1795,  United  States  District  Judge  1801-1845. 


9 


STATE  BARS  OF  NEW  YORK  AND  NEW  ENGLAND    323 

had  but  little  business  with  fees  and  compensation  miser- 
ably small.  The  professional  income  of  Picrrcpont  Edwards, 
supposed  to  be  the  largest  in  the  State,  was  said  not  to 
amount  to  S2000  a  year.  .  .  .  Very  few  obtained  half  that 
sum."  In  1798  there  were  about  one  hundred  and  twenty 
practising  lawyers  in  the  State.  Among  the  more  promi- 
nent were  Noah  Webster,^  Zephaniah  Swift,^  Simeon  Bald- 
win,3  OHver  Wolcott,^  Thomas  S.  Williams,^  David  Daggett,^ 
Roger  Griswold,''  Chauncy  Goodrich,^  Pierrepont  Edwards, 
Thomas  Day,^°  James  Hillhouse,"  James  Gould,^^  ^nd 
Uriah  Tracy.^^ 

The  greatest  Connecticut  lawyer  of  the  early  Nineteenth 
Century  was  Roger  Minott  Sherman,  who  was  born  in 
1773,  graduated  from  Yale  in  1792,  studied  in  Judge  Ells- 
worth's office  and  also  attended  lectures  of  Judge  Reeve 
at  his  law  school  in  Litchfield,  admitted  to  the  Bar  in 
1796. 

1  Born  in  1758,  a  Yale  graduate  of  1779,  admitted  to  the  Bar  in  1781. 

2  Born  in  1759,  Yale  1778,  the  author  in  1795  of  the  System  of  Laws  of 
Connccticul,  and  in  1822  of  the  Digest  of  Laws  of  Connecticut,  which  has  the 
distinction  of  being  the  first  comprehensive  view  of  the  English  Common 
Law  published  in  America,  practically  an  American  digest,  Chief  Justice  in 

1806-1819. 

3  Bom  in  1761,  a  graduate  of  Yale  in  1781,  and  Judge  of  the  Superior 

Court  in  1806. 

*  Born  in  1760,  a  graduate  of  Yale  1778. 

6  Born  in  1777,  a  graduate  of  Yale  in  1794,  Chief  Justice  in  1834. 

8  Born  in  1764,  a  Yale  graduate  of  1783,  and  United  States  Senator  in 
1813,  Chief  Justice  1832-1834- 

^  Bom  in  1762,  a  Yale  graduate  of  1780. 

8  Born  in  1759,  Yale  graduate  of  1776,  and  United  States  Senator  in 
1807-1813. 

»  Born  in  1750,  a  Princeton  graduate  of  1768. 

10  Bora  in  1777,  a  Yale  graduate  of  1797. 

"  Bom  in  1754,  a  Yale  graduate  of  1773,  United  States  Senator  1796. 

12  Born  in  1770,  a  Yale  graduate  1741,  Judge  of   Superior  Court  1S16- 

1818. 
u  Bora  in  1755,  a  Yale  graduate  of  1778,  United  States  Senator  1796- 

1807. 


324  A  HISTORY  OF  THE  AMERICAN  BAR 

NOTE 

To  New  York  Text 

For  authorities  in  general,  see : 

A  Political  History  of  New  York,  by  A.  S.  Alexander  (1906). 
American  Law  Review,  Vol.  V,  p.  445. 

Rufus  King,  Life  and  Correspondence,  by  Charles  R.  King  (1894). 
Address  by  George  Shea  in  New  York  Bar  Association  Proc, 

Vol.  II. 
New  York  Bar  Ass.  Proc,  Vol.  XII,  p.  127. 
Address  of  James  Kent  before  Law  Association  of  City  of  New 

York,  Oct.  21,  1836. 
Memoir  of  Alexander  Hamilton,  a  letter  by  James  Kent  (1832). 
Life  of  James  Kent,  by  William  Kent  (1898). 
Aaron  Burr,  by  Samuel  L.  Knapp  (1835). 
Aaron  Burr,  Life  and  Times,  by  James  Parton  (1882). 
Diary  and  Letters  of  Gouverneur  Morris,  by  Anne  Carey  Morris 

(1888). 
Gouverneur  Morris,  by  Jared  Sparks  (1832). 
Alexander  Hamilton,  by  John  T.  Morse,  Jr.  (1876). 
Life  of  Edward  Livingston,  by  Charles  H.  Hunt  (1864). 
Lives  of  the  Governors  of  the  Stale  of  New  York,  by  John  S. 

Jenkins  (1851). 

To  New  Hampshire  Text 

History  of  New  Hampshire,  by  Jeremy  Belknap  (1792). 
Judicial  History  of  New  Hampshire  before  the  Revolution,  Law 

Reporter,  Vol.  XVIII,  301. 
Bench  and  Bar  of  New  Hampshire,  by  C.  H.  Bell  (1894). 
Life  of  Jeremiah  Mason,  by  George  S.  Hillard  (1873). 
Life  of  Jeremiah  Smith,  by  John  H.  Morison  (1845). 
Review  of  Life  of  Jeremiah  Smith,  Law  Reporter,  Vol.  VIII, 
Life  of  Charles  Marsh,  by  James  Barret  (1871). 
Address  by  David  Cross  in  Southern  New  Hampshire,  Bar  Ass. 

Proc,  Vol.  I. 


CHAPTER  XIII 

EARLY  AMERICAN  LAW  BOOKS 

It  has  been  seen  in  the  preceding  chapters  how  general 
was  the  feeling  that  the  law  in  the  United  States  should  be 
emancipated  from  its  dependence  on  English  decisions. 
Conditions  of  life,  of  commerce,  of  real  estate  deaUngs, 
and  of  court  practise  were  essentially  different  m  the  United 
States  from  those  in  England;  and  a  distinct  body  of  law 
was  demanded  for  this  country.  To  supply  this  demand 
there  arose  the  body  of  American  law  reporters  and  law 

writers. 

James  Sullivan,  of  Massachusetts,  well  expressed  this 
general  sentiment  of  those  who  felt  that  the  country  should 
have  a  genuine  American  system  of  law  based  on  American 
cases,  in  the  preface  to  his  work  on  Latid  Titles,  in  1801 :     . 

"The  want  of  accurate  reports  necessary  to  evince  what 
statutes  and  principles  of  the  English  laws  had  been  adopted, 
used,  and  practised  upon  before  the  Revolution  is  very 
discouraging  in  this  work.  ...  It  would  be  well  for  us 
to  have  our  own  comments,  and  to  reject  those  of  other 
governments  which  have  been  issued  since  we  became  an 
independent  nation.  ...  We  ought  to  have  our  own 
reporters,  compilers  and  compositors.  Ever>'one  who 
will  attempt  something  m  this  way  ought  to  be  encouraged 
by  the  public. 

"There  have  been  motions  in  some  of  the  legislatures  in 
the  Union  to  prohibit  the  reading  of  English  reports  in 
our  courts  of  justice.  .  .  .  The  judges  themselves  in  several 
of  the  States  have  with  great  propriety  inclined  to  reject 
the   reports  of   cases  determined  by  England   since   the 


326  A  HISTORY  OF  THE  AMERICAN  BAR 

American  Revolution.  These  motions,  however  crude 
and  undigested  they  may  have  been,  no  doubt  had  their 
origin  in  a  strong  love  to  our  national  independence.  And 
the  motive  is  therefore  a  laudable  rather  than  a  reprehen- 
sible one." 

The  same  views  were  set  forth  in  a  letter  from  a  Boston 
lawyer  in  the  Columbian  Centinel,  in  1801 : 

"Too  great  inattention  has  hitherto  prevailed  as  to  the 
preservation  of  the  decisions  of  our  courts  of  law.  We 
have  neither  authorized  nor  voluntary  reporters.  Hence 
we  are  compelled  to  the  loose  and  interested  recollections 
of^counsel,  or  to  depend  wholly  on  British  decisions." 

And,  as  Cranch  said  in  the  preface  to  his  Supreme  Court 
Reports,  in  1804: 

"Much  of  that  uncertainty  of  the  law,  which  is  so  fre- 
quently and  perhaps  so  justly  the  subject  of  complaint 
in  this  country,  may  be  attributed  to  the  want  of  American 
reports.  Many  of  the  causes,  which  are  the  subject  of 
litigation  in  our  Courts,  arise  upon  circumstances  pecuhar 
to  our  situation  and  laws,  and  little  information  can  be 
derived  from  English  authorities  to  lead  to  a  correct  de- 


cision." 


But  before  a  body  of  American  law  could  be  established, 
there  was  need  of  some  authoritative  method  of  preserv- 
ing the  decisions  of  the  courts,  in  order  that  the  judges 
might  have  some  means  of  knowing  what  the  American 
precedents  were.^ 

As  a  reviewer  of  one  of  the  early  volumes  of  American 
reports  stated :  ^ 

"The  United  States  have,  until  within  a  few  years, 
trusted  to  traditions  the  reasons  of  their  judicial  decisions. 

'  For  an  excellent  article  on  American  Reports  and  Reporters,  see  American 
Jurist,  Vol.  XXII  (1839). 

2  Review  of  Vol.  I  of  Tyng's  Massachusetts  Reports,  quoted  in  Hall's 
American  Law  Journal,  Vol.  I  (1808). 


EARLY  AMERICAN   LAW  BOOKS  327 

But  with  wealth  and  commerce,  and  with  more  enlarged 
views  of  jurisprudence,  it  became  obvious  that  the  expo- 
sition of  our  statutes  and  the  validity  of  our  customs  should 
rest  upon  a  more  secure  basis  than  the  memory  of  man 
or  the  silent  influence  of  unquestioned  usage." 

An  accurate  view  of  the  state  of  the  law,  resulting  from  the 
absence  of  recorded  decisions,  was  given  by  John  Duer,  a 
contemporary  of  Kent,  in  describing  the  condition  of  New 
York  courts  before  the  era  of  law  reports :  ^ 

"The  decisions  .  .  .  were  not  the  fruit  of  that  careful 
and  laborious  investigations  which  is  essential  to  the  proper 
discharge  of  the  judicial  functions;  and  the  authority 
they  might  otherwise  have  claimed  was  greatly  impaired 
by  these  frequent  diflerences  of  opinion  that  are  the  neces- 
sary result  of  imperfect  examination  and  study.  It  was 
seldom  that  the  opinions  of  the  judges,  even  in  the  most 
important  cases,  were  reduced  to  writing;  and  as  no  reports 
were  then  published,  and  no  records  preserved  of  the 
grounds  on  which  their  decisions  were  placed,  the  cases 
were  numerous  in  which  they  had  no  rules  to  direct,  no 
precedents  to  govern  them.  Of  this  state  of  things,  the 
inevitable  consequences  were  vacillation,  contradictions, 
confusion,  and  uncertainty.  .  .  .  This  defective  adminis- 
tration of  the  law  had  a  most  unfavorable  influence  on 
the  character  and  pursuits  of  the  Bar;  for  when  cases 
are  slightly  examined  and  rashly  decided  by  the  judges, 
the  principal  motives  for  a  diligent  preparation  on  the  part 
of  counsel  cease  to  exist." 

And  as  a  writer  in  the  North  American  Ranew  said,  in 
1825:2 

"The  practice  of  reporting  decisions  with  their  grounds 
and  reasons  is  indeed  an  insuperable  barrier  to  the  corrup- 
tion of  judges;  and  it  is  the  strongest  possible  guard  against 

'  Discourse  before  (he  Bar  of  New  York,  by  John  Duer  (1848). 
"  Review  of  Pickering's  Reports,  Vol.  I,  by  Willard  Phillips,  North  Amcr. 
Rev.,  Vol.  XX  (1825). 


328  A  HISTORY  OF  THE  AMERICAN  BAR 

negligent  and  inconsiderate  decrees.  .  .  .  The  publication 
of  reports  again  affords  the  only  means  of  informing  the 
community  of  the  laws  by  which  their  conduct  is  to  be 
governed  and  their  rights  to  be  determined." 

To  the  State  of  Connecticut  is  due  the  credit  of  making 
the  first  move  towards  the  establishment  of  a  record  of 
American  law,  by  the  passage,  through  the  efforts  of  two 
of  its  great  lawyers,  Roger  Sherman  and  Richard  Law,  of 
a  statute,  in  1785,  requiring  the  judges  of  the  Supreme  and 
Superior  Courts  to  file  written  opinions,  in  disposing  of 
cases  on  points  of  law,  so  that  they  might  be  properly  re- 
ported, and  "thereby  a  foundation  laid  for  a  more  perfect 
and  permanent  system  of  Common  Law  in  this  State." 
This  statute  made  possible  the  first  regular  printed  law 
reports  in  America;  ^  for  in  1789,  Ephraim  Kirby,  a  coun- 
try printer  at  Litchfield,  formerly  a  student  at  Yale,  and 
a  soldier  in  the  Continental  Army,  made  the  first  collec- 
tion of  cases,  and  published  the  volume  known  as  Kirby' s 
Reports,  in  the  preface  to  which  he  says: 

"The  uncertainty  and  contradiction  attending  the 
judicial  decisions  in  this  State  have  long  been  subjects 

'  WTiile  Kirby  was  the  first  American  law  reporter,  in  the  legal  use  of 
the  term,  he  was  not  the  first  person  to  publish  reports  of  cases,  for  through- 
out the  Eighteenth  Century  printed  reports  of  famous  criminal  trials  were 
to  be  found,  and  an  occasional  printed  account  of  a  civil  action. 

Neither  does  Kirby' s  Reports  contain  the  earliest  American  cases;  for 
Harris  and  McHenry's  Reports,  published  in  1809,  contains  cases  of  a  date 
as  early  as  1658;  Quincy's  Reports  (Massachusetts),  published  in  1865,  has 
cases  from  1761-1772:  and  in  1829,  there  was  published  at  Charlottesville, 
Virginia,  a  book  by  Thomas  Jefferson  entitled  Reports  of  cases  determined 
in  the  General  Court  of  Virginia  from  1730  to  1740  and  from  1768  to  1772. 
(See  Forgotten  Chapters  in  the  Life  of  Jefferson,  in  Green  Bag,  Vol.  VIII.) 
Bay's  Reports,  in  South  Carolina,  published  in  1809,  included  cases  dating 
from  1783;  Call's  Reports,  in  Virginia,  published  in  1 801,  includes  cases  dat- 
ing from  1779;  Dallas'  Reports,  in  Pennsylvania,  in  1790,  included  cases 
dating  from  1754;  and  Hughes'  Reports,  in  Kentucky,  in  1803,  included 
cases  dating  from  1785. 


EARLY  AMERICAN  LAW  BOOKS  329 

of  complaint.  The  source  of  this  complaint  is  easily  dis- 
covered. When  our  ancestors  emigrated  here,  they  brought 
with  them  the  notions  of  jurisprudence  which  prevailed 
in  the  country-  from  whence  they  came.  The  riches,  luxury, 
and  extensive  commerce  of  that  country,  contrasted  with 
the  equal  distribution  of  property,  simplicity  of  manners, 
and  agricultural  habits  and  employments  of  this,  rendered 
a  deviation  from  the  English  laws,  in  many  instances, 
highly  necessary.  This  was  observed ;  and  the  intricate  and 
prolLx  practice  of  the  English  courts  was  rejected,  and 
a  mode  of  practice  more  simple,  and  better  accommodated 
to  an  easy  and  speedy  administration  of  justice,  adopted. 
Our  courts  were  still  in  a  state  of  embarrassment,  sensible 
that  the  Common  Law  of  England,  '  though  a  highly  im- 
proved system,'  was  not  fully  applicable  to  our  situation; 
but  no  provision  being  made  to  preserve  and  publish  proper 
histories  of  their  adjudications,  every  attempt  of  the 
judges  to  run  the  Hne  of  distinction  between  what  was 
applicable  and  what  was  not  proved  abortive,  for  the 
principles  of  their  decisions  were  soon  forgot,  or  misunder- 
stood, or  erroneously  reported  from  memory.  Hence 
arose  a  confusion  in  the  determination  of  our  courts.  The 
rules  of  property  became  uncertain,  and  litigation  propor- 
tionably  increased. 

''In  this  situation,  some  legislative  exertion  was  found 
necessary;  and  in  the  year  1785  an  act  passed,  requiring 
the  judges  of  the  Superior  Court  to  render  written  reasons 
for  their  decisions  in  cases  where  the  pleadings  closed  in  an 
issue  at  law.  This  was  a  great  advance  towards  improve- 
ment. Still  it  left  the  business  of  reformation  but  half 
performed;  for  the  arguments  of  the  judges,  without  a 
history  of  the  whole  case,  would  not  always  be  intelligible, 
and  they  would  become  known  to  but  few  persons,^  and, 
being  written  on  loose  papers,  were  exposed  to  be  mislaid, 
and  soon  sink  into  total  oblivion. 

"Hence  it  became  obvious  to  everyone  that  should 
histories  of  important  cases  be  carefully  taken  and  pub- 
lished, in  which  the  whole  process  should  appear,  showing 
the  true  grounds  and  principles  of  the  decision,  it  would 
in  time  produce  a  permanent  system  of  Common  Law.''  . 


330  A  HISTORY  OF  THE  AIMERICAN  BAR 

In  this  same  year  1789,  Francis  Hopkinson  of  Pennsyl- 
vania, published  a  volume  containing  reports  of  four  cases 
tried  in  Admiralty  in  1 785-1 786. 

Alexander  J.  Dallas  followed  Kirby,  the  next  year  1790, 
with  his  first  volume  of  decisions  of  Pennsylvania  cases 
dating  from  1754,  of  which  Lord  Mansfield  wrote  to  Chief 
Justice  McKean  of  Pennsylvania,  in  1791:  "They  do 
credit  to  the  Court,  the  Bar,  and  the  Reporter;  they  show 
readiness  in  practice,  liberality  in  principle,  strong  reason 
and  legal  learning."  Hopkinson' s  Admiralty  Reports  were 
printed  in  1792.  Chipman's  Reports  came  next  in  Vermont 
in  1793.  Chancellor  Wythe  published  his  Decisions  of 
Cases  in  Virginia  by  the  High  Court  of  Chancery  in  1795  — 
a  volume  particularly  interesting  from  the  fact  that  Henry 
Clay,  a  lad  of  fifteen,  then  a  poor  assistant  in  the  Clerk's 
office,  was  picked  out  by  Wythe  to  write  out  and  record 
his  decisions  for  this  work,  and  in  the  copies  of  these  re- 
ports sent  to  Jefferson,  John  Adams,  and  Samuel  Adams 
are  notes  in  English  and  Greek  written  by  Clay  at  Wythe's 
dictation. 

Martin's  Reports  in  North  Carolina  followed,  in  1797; 
Root's,  in  Connecticut,  and  Washington's,  in  Virginia,  in 
1798;  and  Haywood's,  in  North  Carolina,  in  1799;  Addi- 
son's, in  Pennsylvania,  in  1800;  Call's,  in  Virginia,  in 
1801 ;  Taylor's,  in  North  Carohna,  in  1S02;  Hughes',  in  Ken- 
tucky, in  1803;  Pennington's,  in  New  Jersey,  in  1808; 
Hening  and  Munford's,  in  Virginia,  in  1808;  Bay's,  in 
South  Carohna;  Harris  and  McHenry's,  in  Maryland; 
Binney's,  in  Pennsylvania,  and  Tyler's,  in  Vermont,  in 
1809;  Hardin's,  in  Kentucky,  in  18 10;  Martin's,  in 
Louisiana,  in  1811;  Overton's,  in  Tennessee,  in  1813;  Bibb's, 
in  Kentucky,  in  181 5;  Coxe's,  in  New  Jersey,  in  1816; 
and  New  Hampshire  Reports,  in  1819.  It  is  a  striking  fact 
that  printed  law  reports  were  published  in  all  the  Southern 


EARLY  A:\IERICAN   LAW   BOOKS  331 

States,  before  any  were  in  existence  in  most  of  the  Northern 
States.  The  first  reports  in  New  York  were  Coletnan's,  in 
1801,  and  the  first  official  reports  were  Cames'  in  1804. 
It  was  Kent  who  introduced  in  New  York  the  system 
of   filing  written  opinions,  as  he  writes: 

"When  I  came  to  the  bench  (in  1798),  there  were  no 
reports  or  State  precedents.  The  opinions  from  the  bench 
were  delivered  ore  tenus.  We  had  no  law  of  our  own  and 
nobody  knew  what  it  was.  I  first  introduced  a  thorough 
examination  of  cases  and  written  opinions.  In  January  1 799, 
the  second  case  reported  in  I,  Johnson's  cases  of  Ludlow 
V.  Dale  is  a  sample  of  the  earliest.  The  judges,  when  we 
met,  all  assumed  that  foreign  sentences  were  only  good 
prima  facie.  I  presented  and  read  my  wTitten  opinion 
that  they  were  conclusive,  and  they  all  gave  up  to  me, 
and  so  I  read  it  in  court  as  it  stands.  .  .  . 

"This  was  the  commencement  of  a  new  plan  and  there 
was  laid  the  first  stone  in  the  subsequently  erected  temple 
of  our  jurisprudence.  ...  In  1814  I  was  appointed  Chan- 
cellor. The  office  I  took  with  considerable  reluctance.  .  .  . 
It  is  a  curious  fact  that,  for  the  nine  years  I  was  in  that 
office,  there  was  not  a  single  decision,  opinion  or  dictum 
of  either  of  my  two  predecessors  (Livingston  or  Lansing) 
from  1777  to  1814  cited  to  me  or  even  suggested." 

It  was  six  years  after  Kent  began  his  written  opinions, 
before  the  Legislature  provided  (in  1804)  for  a  regular 
Reporter  on  a  salary  —  George  Caines  being  the  first  to 
be  appointed,  and  William  Johnson  being  his  successor. 

In  1803,  Massachusetts  established  the  office  of  Reporter 
and  initiated  the  publication  of  reports,  intended  at  first 
as  an  experiment,  for  the  statute  was  limited  in  its  opera- 
tion to  three  years.  Ephraim  Williams  was  made  Re- 
porter, and  his  first  volume  was  published  in  1805. 

The  first  volume  of  United  States  Supreme  Court  reports 
was  published  by  Dallas  in  1798  (2  Dallas);  and  in  1804, 
Cranch  began  the  publication  of  his  reports,  containing  the 


332  A  HISTORY  OF  THE  AMERICAN  BAR 

first  of  Chief  Justice  Marshall's  opmions.  No  provision 
was  made  for  an  official  Reporter,  by  act  of  Congress, 
until  1817. 

The  American  law  text  book,  like  the  American  law  re- 
port, owed  its  origin  largely  to  the  demand  for  the  creation 
of  a  native  body  of  law,  distinct  from  the  English  law.^ 

The  need  arose  first  in  the  department  of  pleading,  and 
was  well  expressed  in  the  preface  to  the  first  American  col- 
lection of  forms,  published  at  Boston,  in  1802,  entitled 
American  Precedents  oj  Declarations? 

"The  motives  which  induce  this  publication  after  the 
labored  books  of  entries  which,  under  the  sanction  of  Coke, 
Rastall,  Lilly,  Mallory  and  Raymond,  have  received  the 
approbation  of  the  profession,  become  particularly  neces- 
sary to  be  developed.  The  redundances  of  the  English 
forms,  however  proper  in  their  courts,  where  remuneration 
is  proportionate  to  literal  labour,  have  ever  been  the  sub- 
jects of  complaint  among  our  own  lawyers  who  have  been 
obliged  at  a  vast  expense  of  time  and  money  to  purchase 
researches  into  ponderous  volumes  where  the  useful  matter 
was  buried  amid  heaps  of  antiquated  learning  and  super- 
fluous detail.     This  end  has  indeed  been  most  severely 

1  The  compilation  of  books  described  in  these  pages  has  been  made  largely 
from  the  comprehensive  Legal  Bibliography,  published  at  Philadelphia  in 
1846,  by  James  G.  Marvin. 

A  practically  complete  list  may  also  be  found  in  the  summaries  of  the  law 
of  the  various  States  contained  in  the  Annual  Law  Register,  Vols.  Ill  and  IV, 
published  by  William  Griffiths,  at  Burlington,  New  Jersey,  in  1822  — a 
most  valuable  source  of  information  regarding  legal  conditions  of  the  early 
part  of  the  Nineteenth  Century. 

'^  Judge  Iredell  of  the  United  States  Supreme  Court  left  unfinished  at 
his  death,  in  1798,  a  legal  treatise  entitled  An  Essay  on  Pleading  in  Suits  at 
Common  Law,  consisting  of  four  volumes  folio,  1229  pages  of  closely  written 
manuscript  —  also  365  pages  of  Doctrine  of  the  Laws  of  England  Concerning 
Real  Property  so  far  as  it  is  in  use  or  in  force  in  the  State  of  North  Carolina; 
also  12  chapters  of  275  pages  of  an  Appendix  to  the  Law  of  Evidence,  a  work 
originally  published  by  an  anonymous  writer  in  1777. 

See  Life  and  Letters  of  James  Iredell,  by  Griffith  J.  McRee,  Vol.  II  (1857). 


EARLY  AMERICAN  LAW  BOOKS  333 

felt  in  New  England,  where  juridical  practice,  though 
bottomed  on  the  principles  of  the  Common  Law,  from 
the  character  of  the  people  and  the  peculiarity  of  the 
laws  assumed  a  more  compact  and  simple  form.  In  addi- 
tion to  this,  the  structure  of  our  government,  so  materially 
variant  from  European  sovereignties,  as  well  as  domestic 
remedies  of  statutory  appointment  have  created  defi- 
ciencies and  changes  which  no  foreign  works  could  meet 
and  no  personal  industry  supply.  .  .  .  They  have  been 
almost  wholly  transcribed  from  manuscript  forms  which 
have  been  preserved  with  veneration  and  collected  with 
fidehty  by  the  first  ornaments  of  the  bench  and  forum  in 
our  own  and  adjacent  States.  By  the  offers  of  celebrated 
living  counsel,  the  work  has  been  perfected  in  many  valu- 
able forms,  which  have  either  received  judicial  decisions  or 
been  approved  by  unquestionable  authority." 

In  the  same  year,  1801,  Thomas  Harris  published  at 
Annapolis  his  Modern  Entries,  adapted  to  tJie  American 
Courts  of  Justice,  being  a  complete  system  of  approved  prec- 
edents. 

Four  years  later,  in  1805,  Joseph  Story,  then  only  twenty- 
sLx  years  of  age,  published  at  Salem  his  A  Selection  of 
Pleadings  in  Civil  Cases,  of  which  J.  G.  Marvin,  the  author 
of  Legal  Bibliography,  said,  in  1847: 

"The  appearance  of  the  volume  was  opportune  and  ser- 
viceable to  the  profession  in  this  country,  who  had  hitherto 
been  obliged  to  resort  to  the  voluminous  books  of  English 
Entries  for  precedents.  The  notes  and  references  show 
attainments  in  the  service  of  special  pleadings  at  the  early 
age  in  which  this  his  first  attempt  at  legal  authorship  was 
published.  The  work  gave  a  new  impulse  to  study  in  this 
department  of  professional  learning." 

In  1806,  Colinson  Read  of  Philadelphia  published 
American  Pleaders'  Assista?it. 

In  1810,  John  Anthon  published,  at  New  York,  the 
second  edition  of  American  Precedents  of  Declarations  col- 


334  A  HISTORY  OF  THE  AIMERICAN  BAR 

lected  chiefly  from  the  manuscript  of  Chief  Justice  Parsons 
and  other  accomplished  Pleaders  in  the  State  of  Massachusetts. 

In  1811,  W.  W.  Hening  of  Virginia  published  his  American 
Pleader,  in  New  York. 

Although  the  early  reports  were  largely  filled  with  cases 
involving  real  property,  the  text  books  in  use  on  that  sub- 
ject were  mainly  English. 

In  1768,  however,  John  Adams  had  written  anony- 
mously the  first  American  book  on  this  branch  of  the 
law,  An  Essay  on  Feudal  and  Common  Law,  first  pubhshed 
in  London,  in  1768,  but  not  until  1783  in  this  country,  in 
Philadelphia.^ 

In  1794,  William  Wyche  published  in  New  York,  An 
Essay  on  the  Theory  and  Practice  of  Fines;  ^  and  in  1801, 
James  Sullivan  of  Massachusetts  published  in  Boston  the 
first  really  comprehensive  work  on  real  estate  law,  entitled 
Land  Titles  in  Massachusetts. 

In  1808,  John  Kilty  of  Maryland  published  his  Land- 
holders' Assistant  and  Land  Oflce  Guide.  In  1810,  W. 
Graydon  of  Pennsylvania  published  Forms  of  Conveyanc- 
ing and  Practise.  In  18 16,  Benjamin  Lynde  Oliver  pub- 
lished his  Practical  Conveyancing,  which  long  remained  a 
standard  work. 

The  important  part  which"  admiralty  and  maritime 
cases  played  in  the  courts  in  the  thirty  years,  1 785-181 5, 
is  reflected  in  a  remarkable  degree  in  the  number  of  trans- 

»  Its  authorship  was  ascribed  to  Jeremiah  Gridley,  but  a  few  persons 
knew  its  real  author  as  the  following  letter  from  Rev.  Dr.  Chauncey  to 
Rev.  Dr.  Stiles,  Dec.  12,  1768,  shows: 

"He  is  but  a  young  man  not  above  zi  or  34  but  of  incomparable  sense,  a 
true  son  of  liberty,  and  as  well  able  to  write  or  talk  upon  it  as  any  one  I 
am  acquainted  with.  I  esteem  that  piece  one  of  the  best  that  has  been  writ- 
ten. It  has  done  honor  to  its  author;  and  it  is  a  pitybut  he  should  be  known." 
See  Mass.  Hist.  Coll.,  ist  series,  Vol.  X,  p.  187. 

*  See  Modern  La-jj  oj  Real  Property,  —  Columbia  Law  Review,  Vol.  I  (1901). 


EARLY  AMERICAN  LAW  BOOKS  335 

lations  made  by  American  lawyers  of  the  works  of  foreign 
writers  on  maritime,  admiralty,  civil,  and  international 
law.  These  translations  displayed  considerable  legal 
scholarship,  and  proved  the  lawyers  of  this  country  to  be 
largely  in  advance  of  their  Enghsh  brethren,  who,  in  gen- 
eral, took  Httle  interest  in  anything  outside  of  the  Com- 
mon Law  of  England.  Thus  in  1795,  William  Cobbett 
published  in  Philadelphia  his  translation  of  Martens'  Law 
of  Nations.  A  translation  of  Burlamaqui  was  published  in 
1792,  in  Boston.  In  1802,  Francis  Xavier  Martin  published 
at  Newbern,  North  Carolina,  a  translation  of  Pothier  on 
Contracts;  and  in  1806,  W.  D.  Evans  published  the  same 
work,  in  Philadelphia. 

In  1800,  Montesquieu's  Esprit  des  Lois  was  published 
in  Boston;  and  in  1802,  in  Philadelphia.  In  1805,  Vatlel 
was  published,  in  Boston. 

In  1806,  Azuni  was  translated  and  published  by  WiUiam 
Johnson,  in  New  York. 

In  1808,  John  E.  Hall  published,  at  Baltimore,  his  trans- 
lation of  Clerke's  Praxis,  with  notes  on  American  Admiralty 
Practice;  and  in  181 1,  his  translation  of  Emerigon's  Mari- 
time Loans. 

In  1809,  J.  R.  Ingersoll  translated  Rocciis. 

In  1810,  P.  S.  DuPonceau,  of  Philadelphia,  translated 
Bynkershoek's  Laws  of  War.  In  1812,  Thomas  Cooper 
pubhshed  in  Philadelphia  a  translation  of  Justinian's  In- 
stitutes. In  1809,  John  E.  Hall  of  Baltimore  wrote  a  treatise 
on  Admiralty  Practice;  and  in  the  same  year  William  J. 
Duane  of  Philadelphia  wrote  his  Law  of  Nations.  In  181 5, 
Henry  Wheaton  wrote  his  able  book  on  Maritime  Captures 
and  Prizes.  In  1818,  William  Prick  of  Baltimore  trans- 
lated Jacobsen's  Laws  of  the  Sea. 

Four  general  works  on  the  Common  Law,  written  in 
this   period,    showed   genuine   scientific    thought   and    re- 


336  A  HISTORY  OF  THE  AMERICAN  BAR 

search;  and  have  remained  of  more  or  less  permanent 
value  in  American  legal  Uterature.  In  1793,  Nathaniel 
Chipman,  Chief  Justice  of  Vermont,  published  his  Dis- 
sertations. In  1804,  the  lectures  delivered  before  the 
students  of  the  College  of  Philadelphia  by  James  Wilson, 
Judge  of  the  United  States  Supreme  Court,  were  printed. 
In  the  year  prior,  St.  George  Tucker,  Professor  of  Law, 
pubHshed  his  famous  edition  of  Blackstone,  in  five  volumes 
(following  the  9th  Enghsh  edition  of  1783),  which  work, 
under  the  title  of  Tucker's  Blackstone,  had  widespread  cir- 
culation, both  as  a  text-book  and  otherwise,  giving  to  him 
the  sobriquet  of  the  "American  Blackstone,"  and  contain- 
ing the  first  legal  commentaries  on  the  Federal  Constitu- 
tion which  appeared  in  the  United  States.  In  1814,  Judge 
H.  N.  Brackenridge,  of  Pennsylvania,  wrote  his  Law  Mis- 
cellanies containing  Introduction  to  the  Study  of  the  Law, 
Notes  on  Blackstone's  Commentaries,  Strictures  on  decisions 
of  the  Supreme  Court  of  the  United  States  with  some  law 
cases.  In  1 795-1 796,  Zephaniah  Swift  published  his  Sys- 
tem of  the  Laws  of  Connecticut,  a  keen,  scientific  work  of 
much  more  than  local  interest. 

There  were  a  few  scattered  treatises  on  special  subjects, 
but  they  were  of  little  scientific  or  permanent  value.  Thus 
in  1794,  William  Wyche  published  a  manual  on  New  York 
Supreme  Court  practise,  the  earliest  book  of  this  kind;  in 
1797,  John  F.  Grimke  of  South  CaroUna  published  his  Law 
of  Executors;  in  1801,  Thomas  Cooper  of  Philadelphia 
published  The  Bankrupt  Law  of  America.  In  1803, 
Francis  Xavier  Martin  published  in  North  Carolina  a 
short  treatise  on  the  Powers  and  Duties  of  Executors  and 
Administrators;  in  the  same  year,  Samuel  Freeman  at 
Boston,  his  Probate  Directory.  A  Treatise  on  Criminal 
Law  was  published  by  H.  Toulmin  and  James  Blair,  in  1804, 
at  Frankfort,  Kentucky.     In  1808,  James  Bradly  published 


EARLY  AMERICAN  LAW   BOOKS  337 

in  New  York,  a  Treatise  on  the  Law  of  Distress.  In  1810, 
Zephaniah  Sw^ift,  of  Connecticut,  published  the  first  Ameri- 
can Digest  of  the  Law  of  Evidence  and  also  a  Treatise  on  Bills 
of  Exchange  and  Promissory  Notes;  and  Thomas  G.  Fes- 
senden  published  Essay  on  the  Law  of  Patents.  In  181 1, 
Samuel  Livermore,  of  New  Orleans,  who  at  his  death  be- 
queathed his  large  law  library  to  Harvard  College,  wrote 
the  first  American  work  on  Principal  and  Agent  and  Sales 
by  Auction.^  In  the  same  year,  Thomas  Sergeant,  of  Phila- 
delphia, pubhshed  a  treatise  on  Foreign  Attachment.  In 
1816,  Judge  Tapping  Reeve,  of  the  Litchfield  Law  School, 
published  at  New  Haven,  his  work  on  the  Law  of  Baron 
and  Femme,  Parent  and  Child,  Guardian  and  Ward,  Master 
and  Servant,  and  of  the  Powers  of  Courts  of  Chancery. 

The  greater  proportion,  however,  of  the  American  law 
books  consisted  of  mere  manuals  for  town  ofiicers,  justices 
of  the  peace,  and  petty  officers  —  books  of  ephemeral  value.- 

For  the  most  part,  therefore,  lawyers  still  continued  to 
rely  on  important  Enghsh  text  books  and  English  editions 
of  the  law  reports,  although  steps  were  also  taken 
towards  republishing  and  re-editing  Enghsh  works;    and 

^  A  new  edition  was  published  in  two  volumes  in  Baltimore  in  1818. 

2  See  James  Parker's  Conductor  Ceneralis  (N.  Y.  1787);  John  F.  Grimke's 
Justices  of  the  Peace  (S.  C.  1796);  Francis  X.  Martin's  Office  of  Justice  of 
the  Peace  (N.  C.  1791),  Jurisdiction  of  Justices  of  the  Peace  in  Civil  Suits 
(N.  C.  1796),  and  Powers  and  Duties  of  Sheriff  (N.  C.  1806);  Ewing's  Jus- 
tice of  Peace  (N.  J.  1805);  Samuel  Freeman's  The  Town  Officer  (Boston, 
1799,  1815),  and  tlie  Massachusetts  Justice  (Boston,  1802,  1810);  Justices 
and  Constables'  Assistant,  by  W.  Graydon  (Philadelphia,  1S05);  R.  Bache's 
Manual  of  Pennsylvania  Justices  of  tJie  Peace  (Philadelphia,  18 10,  1S14); 
C.  Read's  Precedents  in  Offite  of  Justice  of  Peace  and  Short  system  of  Convey- 
ancing (Philadelphia,  1794,  1801);  Samuel  Whiting's  Connecticut  Town 
Officer  (1814);  The  Civil  Officer  (Boston,  1S09,  1814);  John  Tappan's  County 
and  Town  Officers  of  New  York  (Kingston,  N.  Y.  1816);  W.  W.  Hening's 
The  Virginia  Justice  (Va.  iSii);  Rodolphus  Dickinson's  fcwcrj  of  Sheriff 
(Mass.  1810);  Jonathan  Leavitt's  Poor  Law  of  Massachusetts  (Mass.  1810); 
Probate  Directory  (Mass.  1S12);  Overseers  Guide  (Mass.  1815). 


338  A  HISTORY  OF  THE  MIERICAN  BAR 

in  this  movement  Joseph  Story  became  a  leader  —  editing 
Chilly  on  Bills  and  Notes  in  1809;  Abbott  on  Shipping,  in 
1810,  and  Laives  on  Assumpsit,  in  1811.^ 

Perhaps  the  best  illustration  of  the  condition  of  the 
times  in  this  respect  may  be  found  in  the  fact  that  in  the 
Hbrary  of  Theophilus  Parsons  the  great  Chief  Justice  of 
Massachusetts,  which  was  sold  at  auction,  June  2,  1814, 
the  only  American  law  books,  out  of  the  whole  two  hun- 
dred and  eighty- two  were  the  following:  Livermore  on 
Agents  and  Factors  (Boston,  181 1);  Lawes  on  Pleading 
with  Joseph  Story's  Addition  (Boston,  181 1);  Story's  Plead- 
ing (1805);  Laws  of  the  United  States  (10  vols.);  Laws  of 
Massachusetts;  Laws  of  New  Hampshire;  Cranch's  Re- 
ports (6  vols.);  Dallas'  Reports  (4  vols.);  Day's  Reports 
(3  vols.);  Johnson's  Reports  (8  vols.);  Journal  of  Congress 
(13  vols.);  and  Digest  of  Massachusetts  Law  (1809). 

In  1807,  John  E.  Hall  of  Baltimore  announced  to  the 
legal  profession  his  intention  to  pubhsh  a  legal  periodical, 
in  order  to  make  the  decided  cases  more  quickly  accessible 
to  the  Bar  and  more  widely  spread.^  The  first  pubHca- 
tion  of  this  kind  ever  printed  had  been  in  existence  only 
five  years,  since  1803,  The  Law  Journal,  edited  in  England 
by  John  Morgan  and  Thomas  Walter  Williams.  And  in 
January,  1808,  appeared  the  first  number  of  the  American 

1  Among  the  more  prominent  English  Text  Books  thus  republished  in 
America  were  Jones  on  Bailments  (London,  1781;  Boston,  1796);  Kyd  on 
Bills  and  Notes  (London,  1795;  Boston,  1798);  J'ark  on  Insurance  (Boston, 
i8oo);  Burn  on  Marine  Insurance  (N.  Y.  1801);  Marshall  on  Insurance 
(Boston,  1805;  Philadelphia,  1810);  Sullivan's  Lectures  on  the  Feudal  Law 
and  the  Constitution  and  La-uj  of  England  (London,  1776;  Portland,  Maine, 
1805);  Runnington  on  Ejectment  (N.  Y.  1806);  Ballanline  on  Law  of  Limi- 
tations (London,  1810;  N.  Y.  1812,  containing  seventy-one  decisions  of  Amer- 
ican law);  Woodfall  on  Landlord  and  Tenant  (N.  Y.  1816);  Lawes  on 
Pleading  (Portsmouth,  1808). 

*  See  Digests  of  American  Law  Reports  and  American  Law  Periodicals 
—  Amer.  Jurist,  Vol.  XXIII  (1840). 


EARLY  AMERICAN  LAW  BOOKS  339 

Law  Journal  and  Miscellaneous  Repository,  printed  for  Hall 
at  Philadelphia.  Six  volumes  were  issued  between  1808 
to  1810  and  1813  to  181 7.  A  review  of  its  first  volume  in 
the  Boston  Anthology  for  June,  1809,  says: 

"We  agree  with  the  editor  in  his  opinion  of  the  impor- 
tance of  such  a  work  as  he  has  undertaken,  and  we  believe 
the  public  voice  approves  the  execution. 

"Our  country  is  composed  of  seventeen  dilTerent  com- 
munities, each  enjoying  independent  Legislatures,  each 
governed  by  laws,  many  of  whose  provisions,  both  statute 
and  traditional,  are  very  different.  A  pubHcation  like 
Mr.  Hall's  seems  therefore  absolutely  necessary  to  afford 
information  to  an  inhabitant  of  this  State  in  the  prosecution 
of  his  rights  in  New  York,  Maryland,  or  Carolina.  It  will 
also  afford  much  assistance  in  producing  uniformity  in  our 
decisions  on  commercial  questions  which  would  be  so 
beneficial  to  the  whole  community  .  .  .  and  must  be 
considered  by  the  pohtician  as  one  of  the  surest  bonds 
of   the  federal   union." 

Two  volumes  of  a  law  magazine  called  the  North  Caro- 
lina Law  Repository  were  pubHshed  in  1813-1816. 

The  first  distinct  law  Hbrary  was  founded  by  Phila- 
delphia lawyers,  who  incorporated  a  Society  for  that  pur- 
pose in  March,  1802,  described  by  John  Samuel,  in  an 
address  on  the  opening  of  the  Law  Library  of  the  Law 
Association  of  Philadelphia,  March  3,  1898,  as  follows: 

"So  far  as  I,  after  some  research,  have  been  able  to  discover, 
this  was  the  first  law  Hbrary  established  in  the  United  States, 
the  Social  Law  Library  of  Boston,  the  next  oldest,  not  being 
formed  until  two  years  later  in  1804.^  The  oldest  law 
library  in  New  York  is  that  of  the  New  York  State  Library 
at  Albany  founded  in  18 18.  A  claim  was  set  up  to  the 
establishment  of  the  Kennebec  Law  Library  in  Augusta, 
Maine,  as  having  been  founded  in  1800,  but  after  inquiry 

1  The  subscription  paper  for  the  formation  of  this  Librar>-  is  dated  Sep- 
tember 6,  1S03. 


340  A  HISTORY  OF  THE  AMERICAN  BAR 

I  am  convinced  that  no  evidence  can  be  adduced  in  sup- 
port of  this  claim.  In  1805  was  published  the  first  cata- 
logue of  the  books  of  the  Law  Library  Company  of  the 
City  of  Philadelphia.  It  was  prepared  by  William  Rawle, 
and,  I  believe,  was  the  first  printed  catalogue  of  a  law 
library  pubUshed  in  the  United  States.  It  is  a  modest 
booklet  of  eleven  duodecimo  pages,  containing  249  titles 
of  375  volumes,  whose  character  is  curiously  suggestive. 
Nearly  all  the  books  are  reports  of  cases;  and  of  the  small 
remainder,  the  large  majority  are  books  on  practice  — 
and  treatises  on  commercial  law  and  maritime  insurance; 
but  one  digest,  Comyn's  and  not  over  a  dozen  text  books. 
Of  the  reports,  all  are  English  save  three  —  Dallas'  (Penn- 
sylvania), Caines'  (New  York),  and  Taylor's  (North 
Carolina)  Reports."^ 

1  In  the  Life  of  Charles  J.  Ingersoll,  by  W.  M.  Meigs  (1897),  reference 
is  made  to  a  movement  for  a  law  library  in  Washington,  in  a  letter  written 
by  Ingersoll  to  R.  Rush. 

"Feb.  14,  1823.  The  Bar  had  a  meeting  to-day  at  which  Mr.  Wirt  pre- 
sided and  Messrs.  Clay,  Harper  and  Winder  were  appointed  a  committee  to 
devise  means  of  procuring  law  library  of  which  the  want  is  deplorable  here 
(Washington)  and  also  of  obtaining  if  practicable  an  establishment  in  which 
all  the  lawyers  attending  the  Supreme  Court  may  be  accommodated  with 
lodgings  together  which  would  be  a  convenience,  I  dare  say." 


CHAPTER  XIV 

EARLY  L-WV  PROFESSORSHIPS  AND  SCHOOLS 

With  the  close  of  the  Revolutionary  War,  there  began  a 
new  era  in  legal  education. 

The  broadening  of  the  field  of  general  education  and 
the  development  of  American  Nationality  in  all  branches 
of  arts  and  sciences,  which  then  took  place,  were  reflected 
in  the  plans  which  were  made  in  various  American  colleges 
to  introduce  the  study  of  the  law  into  their  curriculum. 
It  seems  to  have  escaped  the  attention  of  historians, 
however,  that  the  first  move  in  this  direction  was  at  Yale 
College  —  and  by  its  President,  Ezra  Stiles,  a  man  of 
singulariy  liberal  learning  and  broad  character.^ 

It  appears  from  President  Stiles'  Diary  that,  at  the  time 
of  his  elecdon  in  1777,  the  Assembly  or  Legislature  of 
Connecticut  proposed  to  endow  three  professorships  for 
the  College  — one  of  law,  one  of  medicine,  and  one  of 

»  See  Literary  Diary  0}  Ezra  Stiles,  Vol.  II,  p.  209. 

"Sept.  19,  1777.  My  election  to  the  Presidency  of  Yale  College  is  an  un- 
expected  and  wonderful  ordering  of  Divine  Providence.  Not  but  that  it 
has  been  talked  of  for  years  past;  but  I  knew  such  reasons  in  the  breasts  of 
the  fellows  and  I  tho't  such  were  the  sentiments  of  the  Assembly  and  a 
plurality  of  the  Pastors  respecting  my  ideas  of  ecclesiastical  polity  and  doc- 
trinal system  of  divinity  as  that  it  was  impossible  I  should  be  elected  .  .  . 
I  have  no  more  resolved  in  my  mind  whether  I  am  qualified  for  such  an  office 
than  for  that  of  a  prime  minister  or  a  Sultan;  or  whether  I  should  on  the 
whole  be  desirous  of  it;  considering  the  smaUness  of  the  salary,  and  the  great 
and  complicated  difficulties  and  labours  which  attend  it,  and  a  hundred  and 
fifty  or  180  young  gentlemen  students  is  a  bundle  of  wild  fire  not  easily  con- 
trolled and  governed  —  and  at  best  the  diadem  of  a  president  is  a  crown 
of  thorns." 


342  A  HISTORY   OF  THE  AMERICAN  BAR 

oratory,  provided  the  Assembly  might  have  som-C  voice 
in  the  appointment  of  professors  and  government  of 
the  College,  and  provided  Stiles  should  be  elected 
President.^ 

The  plan  was  never  consummated,  as  the  Corporation 
of  the  College  declined  to  yield  any  of  its  powers.  Pending 
negotiations,  however,  President  Stiles  was  actively  inter- 
ested in  the  project,  as  appears  from  his  Diary,  December 

3,  1777: 

"I  drafted  a  plan  of  an  University,  particularly  describ- 
ing the  Law  and  Medical  Lectures,  at  the  desire  of  the 
Corporation  of  Yale,  to  be  by  them  laid  before  the  Com- 
mittee of  the  General  Assembly  of  Connecticut,  appointed 
to  consider  among  other  things  whether  it  be  expedient  to 
found  these  two  professorships." 

Notwithstanding  his  failure  to  secure  the  adoption  of 
his  plan,  President  Stiles  evidently  retained  his  behef  in 
the  value  of  law  as  a  part  of  an  undergraduate  education; 
for  July  13,  1 78 1,  he  notes  in  his  Diary,  "I  gave  an  evening 
lecture  on  Law  and  Jurisprudence;"  and  on  March  12, 
1789,  "This  day  I  introduced  for  the  first  time  Montes- 
quieux  Spirit  of  Laws  as  a  Classical  book  into  Yale  College. 
The  Senior  Class  began  to  recite  the  first  volume  this  day. 
It  never  was  used  here  before.  But  it  has  been  recited  in 
Jersey  Coll  (Princeton)  ph.  3  or  4  years;"  and  on  March 
8,  1792,  he  noted  that  he  gave  a  "Lect.  on  Law,  i.  Law 
of  Nature  and  Nations,  2.  Jus  Civile  or  antient  Rom. 
Law,  Pandects,  Imperatorial  Edicts  and  Eccl.  or  Canon 

'  See  Literary  Diary  oj  Ezra  Stiles,  Vol.  II,  under  dates  of  Sept.  27,  1777, 
Nov.  13,  1777,  Nov.  14,  1777,  Dec.  3,  1777,  Feb.  12,  1778,  Feb.  27,  1778. 

A  copy  of  President  Stiles'  plan  for  the  law  professorship  from  the 
original  manuscript  now  in  the  Yale  University  Library,  furnished  to 
the  autlior  by  the  courtesy  of  Franklin  B.  Dexter,  Assistant  Librarian  of  Yale 
University,  is  given  in  full  in  the  Appendix  A. —  See  infra. 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS     343 

Law,  3.  Law  of  Engl.  Common  Law,  Statutes,  Courts  of 
Westminster  Reports,  4.  Laws  of  the  United  States." 

Although  the  Bar  of  Virginia  was  by  no  means  the  most 
prominent  of  the  Colonial  Bars,  the  first  American  law 
professorship  (and  the  second  in  any  English  speaking 
country)  was  founded  at  the  College  of  William  and  Mary 
in  1779  —  in  the  year  after  Blackstone  had  published  the 
eighth  and  final  edition  of  his  lectures,  and  a  year  before 
his  death. 

It  was  to  Thomas  Jefferson  that  the  science  of  law  owed 
its  first  collegiate  professor,  eighty-seven  years  after  the 
chartering  of  the  College.  In  his  Autobiography  he 
says: 

"On  the  first  of  June  1779,  I  was  appointed  Governor 
of  the  Commonwealth  and  retired  from  the  Legislature. 
Being  elected  also  one  of  the  visitors  of  William  and  Mary 
College,  a  self  electing  body,  I  effected,  during  my  residence 
in  Williamsburg  that  year,  a  change  in  the  organization 
of  that  institution,  by  abolishing  the  Grammar  School  and 
the  two  Professorships  of  Divinity  and  Oriental  Languages, 
and  substituting  a  Professorship  of  Law  and  PoHce,  one 
of  Anatomy  Medicine  and  Chemistry  and  one  of  Modern 
Languages;  and,  the  charter  confining  us  to  six  Professors, 
we  added  the  Law  of  Nature  and  Nations  and  the  Fine 
Arts  to  the  duties  of  the  Moral  Professor  and  Natural 
History  to  those  of  the  Professor  of  Mathematics  and 
Natural  Philosophy." 

The  following  regulation  was  then  adopted : 

"A  student  on  paying  annually  1000  pounds  of  tobacco 
shall  be  entitled  to  attend  any  two  of  the  following  pro- 
fessors, viz:  of  Law  &  Police;  of  Natural  History  and  Math- 
ematics; of  Moral  Philosophy,  the  Laws  of  Nature  and 
of  Nations,  and  of  the  Fine  Arts." 

Jefferson's  old  friend  and  teacher,  George  Wythe  (then 
Judge  in  the  Court  of  Chancery),  was  appointed  law  pro- 


344  A  HISTORY  OF  THE  AMERICAN  BAR 

fessor,  instructions  being  given  by  lectures  and  moot  courts. 
One  of  his  first  pupils,  in  17 79-1 780,  was  John  Marshall; 
but,  the  College  exercises  being  interrupted  by  the  occupa- 
tion of  the  buildings  successively  by  the  British  and  French, 
in  the  summer  before  Yorktown,  Marshall's  law  studies 
came  to  a  rapid  end,  and  he  was  admitted  to  the  Bar,  after 
slight  preparation,  in  the  same  year,  1780.^  Among  other 
of  Wythe's  students,  prior  to  1800,  who  later  became  dis- 
tinguished lawyers,  were  Spencer  Roane,  Marshall's  rival 
at  the  Virginia  Bar,  Benjamin  Watkins  Leigh,  John  J. 
Crittenden,  William  A.  Rives,  Alexander  Campbell,  John 
Breckenridge,  John  Wickham,  H.  St.  George  Tucker,  W. 
H.  Cabell,  L.  W.  Tazewell,  William  Munford,  and  George 
Nicholas. 

"Wythe,  above  all  early  statesmen,  was  deeply  learned 
in  the  law;  had  traced  all  its  doctrines  to  their  fountain 
heads,  deUghted  in  the  year  book,  from  doomsday  down; 
had  Glanville,  Br  acton,  Britton,  and  Fleta  bound  in  collects; 
had  all  the  British  Statutes  at  full  length,  and  was  writing 
elaborate  decisions  every  day,  in  which,  to  the  amazement 
of  county  court  lawyers,  Horace  and  Aulus  Gellius  were 
sometimes  quoted  as  authorities."^ 

"He  carried  his  love  of  antiquity  rather  too  far,  for  he 
frequently  subjected  himself  to  the  charge  of  pedantry; 
and  his  admiration  of  the  gigantic  writers  of  Queen 
Elizabeth's  reign  had  unfortunately  betrayed  him  into 
an  imitation  of  their  quaintness.  .  .  .  Yet,  he  was  a  man 
of  great  capacity,  powerful  in  argument,  elegantly  keen 
and  sarcastic  in  repartee  —  long  the  rival  of  Mr.  Pendleton 
at  the  bar,  whom  he  equalled  as  a  common  lawyer  and 
greatly  surpassed  as  a  civihan  .  .  .  No  man  was  ever  more 
entirely  destitute  of  art .  . .  This  simpHcity  and  integrity 
of  character  sometimes  exposed  him  to  the  arts  and  sneers 

*  American  Historical  Association  Papers,  Vol.  IV. 
^  Discojtrse  on  Life  and  Character  of  Littleton  Waller  Tazewell,  by  Hon. 
Hugh  Blair  Grigsby  (1830). 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      345 

of  the  less  scrupulous  .  .  .  but  he  was  not  only  pure,  but 
above  all  suspicion."  ^ 

The  quahty  of  Judge  Wythe's  lectures  may  be  estimated 
by  the  following  opinion  of  Judge  Roane,  expressed  re- 
garding a  manuscript  copy  of  these  lectures,  in  a  letter 
from  Governor  John  Tyler  written  to  Jeflferson,  in  1810: 

"Judge  Roane  has  read  them,  or  most  of  them,  and  is 
highly  pleased  with  them,  thinks  they  will  be  very  valuable, 
there  being  so  much  of  his  sound  reasoning  upon  great 
principles,  and  not  a  mere  servile  copy  of  Blackstone  and 
other  British  Commentators  ...  a  good  many  of  his  own 
thoughts  on  our  constitutions  and  the  necessary  changes 
they  have  begotten,  with  that  spirit  of  freedom  which  always 
marked  his  opinions." - 

'  Sketches  of  the  Life  of  Patrick  Henry,  by  William  Wirt  (i8i'7). 

John  Randolph  said  of  him,  "lie  lived  in  the  world  without  being  of  the 
world;  that  he  was  a  mere  incarnation  of  justice  —  that-his  judgments  were 
all  as  between  A  and  B;  for  he  knew  nobody;  but  went  into  court,  as  As- 
traea  was  supposed  to  come  douTi  from  heaven,  exempt  from  all  human  bias." 

See  especially  The  Supreme  Court  of  Appeals  in  Virginia, —  Green  Bag, 
Vol.  V. 

-  The  rest  of  the  letter  is  of  interest.  It  is  not  known  if  the  lectures 
referred  to  are  in  existence  now  or  not. 

"Perhaps  Mr.  Ritchie  before  this  time  has  informed  you  of  his  having 
possession  of  Mr.  Wythe's  MSS.  lectures  delivered  at  William  and  Mary 
College  while  he  was  professor  of  law  and  politics  at  that  place.  They  are 
highly  worthy  of  publication  and  but  for  the  delicacy  of  sentiment  and  the 
remarkably  modest  and  unassuming  character  of  that  valuable  and  virtu- 
ous citizen  they  would  have  made  their  way  in  the  world  before  this.  It 
is  a  pity  they  should  be  lost  to  society  and  such  a  monument  of  his  mem- 
ory be  neglected.  As  you  are  entitled  to  it  by  his  will  (I  am  informed)  as 
composing  a  part  of  his  library,  could  you  not  find  leisure  time  enough 
to  examine  it  and  supply  some  omissions  which  now  and  then  are  met  with, 
I  suppose  from  accident,  or  from  not  having  time  to  correct  and  improve 
the  whole  as  he  intended. 

"  I  do  not  see  why  an  American  Aristides  should  not  be  known  to  future 
ages.  Mr.  Wm.  Crane  gave  it  to  Mr.  Ritchie  who  I  suppose  got  it  from  Mr. 
Duval  who  always  had  access  to  Mr.  Wythe's  library  and  was  much  in  his 
confidence." 

See  Letters  and  Times  of  the  Tylers,  by  Lyon  G.  Tyler,  \'ol.  I. 


346  A  HISTORY  OF  THE  AMERICAN  BAR 

The  following  interesting  sidelight  on  this  professorship 
of  law  is  found  in  President  Stiles'  Diary,  June  8,  1784:  ^ 

"His  Excellency,  Gov.  Jefferson  of  Virginia  visited  me 
with  a  letter  from  Mr.  (Roger)  Sherman  at  Congress.  .  .  . 
He  was  educated  at  and  entered  Wm.  &  Mary  Coll.  1761, 
where  he  studied  five  years,  and  left  in  1766.  Then  became 
a  Lawyer.  He  was  one  of  the  24  visitors  of  Wm.  &  Mary 
Coll.  .  .  .  The  salaries  of  the  professors  were  £80  in  To- 
bacco, now  worth  £150  or  £160,  the  price  of  tobacco 
has  doubled.  The  Professors  besides  their  salys.  have 
about  £8  in  Tobacco,  now  £12  or  £15,  from  each  scholar 
per  ann.  for  Instruction.  There  are  Eighty  "Undergradu- 
ates Students  at  present.  .  .  .  The  Professor  is  the  Att.- 
Gen.  of  the  State  and  he  makes  more  by  his  Professorship 
than  as  Attorney.  .  .  .  The  Gov.  is  a  most  ingenious 
Naturalist  and  Philosopher  —  a  truly  scientific  and  learned 
man  —  and  every  way  excellent.  .  .  .  Blackston  is  the 
Basis  of  Law  Lect.  in  Wm.  &  Mary  Coll.,  Philosophy, 
Medicine  and  Law  seem  to  be  their  object." 

Wythe  resigned  his  professorship  in  1800,  and  the  chair 
was  filled  by  St.  George  Tucker,  whose  lectures  became 
the  basis  of  his  famous  edition  of  Blackstone,  published  in 
1803,  and  containing  his  commentaries  on  the  Federal  Law 
and  Constitution.  It  was  not  until  1824,  however,  that 
the  College  conferred  any  degree  of  LL.B. 

Ten  years  after  the  foundation  of  this  Virginia  pro- 
fessorship, the  College  of  Philadelphia,  August  17,  1790, 
formally  appointed  as  Professor  of  Law,  James  Wilson, 
then  an  Associate  Justice  of  the  United  States  Supreme 

'  See  Literary  Diary  of  Ezra  Stiles,  Vol.  Ill,  p.  124  (1901).  Thcmas 
Jefferson  had  been  introduced  to  Stiles  by  Roger  Sherman  in  the  following 
letter  dated  Annapolis,  May  11,  1784. 

"I  take  the  liberty  to  introduce  to  you  the  Honorable  Thomas  Jefferson, 
Esq.  ...  He  is  a  Gentleman  of  much  philosophical  as  well  as  political 
knowledge  —  and  I  doubt  not  you  will  be  very  agreeably  entertained  with 
his  conversation." 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS     347 

Court.  The  idea  of  this  professorship  probably  originated 
in  a  request  made  to  the  trustees  by  Francis  Hopkinson, 
in  17S9,  that  a  number  of  young  lawyers,  who  had  formed 
themselves  into  a  society  for  their  mutual  improvement, 
might  have  permission  to  hold  their  meetings  in  a  college 
room.  A  year  later,  in  August,  1790,  the  Trustees  ap- 
pointed Edward  Shippen,  James  Wilson  and  Charles  J. 
Hare,  a  committee  to  consider  the  utility  and  propriety  of 
a  law  professorship.  Wilson  reported  a  plan  embracing 
"Constitutional  and  International  Law,  Origin  and  Rules 
of  Common  Law,  Civil  Law,  Law  Merchant  and  Maritime 
Law,"  designed  "to  furnish  a  rational  and  useful  entertain- 
ment to  gentlemen  of  all  professions,  and  in  particular  to 
assist  in  forming  the  Legislator,  the  Merchant,  and  the 
Lawyer."  ^ 

Philadelphia,  at  this  time,  was  the  seat  of  the  Federal 
Government;  and  the  first  of  the  twenty-four  lectures 
which  he  was  to  deliver  was  given  by  Judge  Wilson  in  the 
Hall  of  the  Academy,  in  the  presence  of  President  Wash- 
ington and  his  Cabinet,  the  Governor,  Members  of  Congress 
and  of  the  Legislature,  Mrs.  Washington  and  other  ladies, 
"a  poKte  assembly"  as  the  papers  of  the  day  described 
it.2  Although  he  had  read  law  with  John  Dickinson,  and 
had  been  one  of  the  Signers  of  the  Declaration  of  Inde- 
pendence, and  one  of  the  leaders  of  the  Philadelphia  Bar, 
"Mr.  Wilson  on  the  bench  was  not  the  equal  of  Mr.  Wilson 
at  the  bar,  nor  did  his  law  lectures  entirely  meet  the  ex- 
pectations that  had  been  formed,"  wrote  Wilham  Rawle, 
who  practised   under  him ;  ^    and   another  contemporary 

'  Historical  Sketch  of  the  Law  Department  of  the  University  of  Penn- 
sylvania, by  Hampton  N.  Carson  (1882). 

^  As  to  these  lectures  of  Judge  Wilson,  see  Uislory  of  Law  Schools,  Amer. 
Bar  Ass.  Proc,  Vol.  XXIV.  See  also  American  Law  Schools,  by  W.  G. 
Hammond,  Southern  Law  Ra'icw,  Vol.  VH. 

'  See  Address  of  Samud  Dickson, —  Penn.  Bar  Ass.  Proc.,  Vol.  VI. 


348  A  HISTORY  OF  THE  AMERICAN  BAR 

writer  said:  "These  lectures  (since  included  in  his  works, 
published  in  1804),  have  not  met  with  general  approba- 
tion, nor  is  their  excellence  altogether  undisputed."  It 
seems  that  his  violent  criticisms  of  Blackstone,  and  his 
ultra-Federalist  views  as  to  the  powers  of  the  National 
Government,  did  not  commend  themselves  to  the  lawyers 
or  to  the  public. 

Of  this  first  lecture,  Fisher  Ames  wrote  from  Philadelphia 
to  Thomas  Dwight,  January  6,  1791:^ 

"I  enclose  Judge  Wilson's  introductory  law  lecture, 
addressed  with  a  propriety  which  he  says  malice  cannot 
question,  to  Mrs.  Washington.  .  .  .  The  great  law  learn- 
ing and  eminent  station  of  the  writer  had  raised  great 
expectations  of  the  performance.  Whether  there  are  not 
many  parts  that  discretion  and  modesty  .  .  .  would  have 
expunged  you  will  be  at  hberty  to  judge.  It  will  be  a  frolic 
for  the  London  Reviewers  to  make  the  Judge's  feathers 
fly.  He  has  censured  the  English  form  of  government 
and  can  expect  no  mercy." 

The  truth  is,  Wilson's  temper  and  habits  were  those  of 
an  advocate,  rather  than  of  a  judge.  His  style  was  diffusive ; 
and  the  lectures,  though  scholarly  and  elegant  essays  on 
general  jurisprudence,  embellished  with  historical  allu- 
sions, were  not  useful  as  practical  instruction  in  Common 
Law.2  Published  in  1804,  these  lectures  are  now  chiefly 
of  interest  for  the  complete  exposition  of  Wilson's  views 
of  the  principles  of  the  Constitution  and  of  the  Federal 
Government. 

The  course  was  kept  up  through  part  of  the  second 
winter;    but  though  requiring  a  third  season  for  its  com- 

'  Life  and  Works  oj  Fisher  Ames. 

*  See  The  Study  of  the  Common  Law,  by  W.  D.  Lewis,  Penn.  Bar  Ass. 
Proc.,  Vol.  IV. 

See  also  comments  on  these  lectures  by  David  Hoffman,  in  1823,  in  his 
Lecture  introductory  to  a  course  of  lectures  now  delivering  in  the  University  of 
Maryland. 


EARLY  LAW  PROFESSORSHIPS  AND   SCHOOLS      349 

pletion,  was  discontinued,  probably  because  of  lack  of 
general  interest  shown  by  the  students.  And  although  on 
the  consolidation  of  the  College  of  Philadelphia  with  the 
University  of  Pennsylvania,  in  1792,  a  similar  law  pro- 
fessorship was  founded,  to  which  Wilson  was  appointed, 
he  gave  no  lectures.  He  died  in  1798.  No  step  was  taken 
to  fill  his  place,  until  March  20,  1817,  when  Charles  Willing 
Hare  (who  had  been  admitted  to  the  Bar  in  1799  with 
Charles  Chauncey,  John  Sergeant,  and  John  B.  Wallace) 
was  elected  Professor. 

From  1790  to  1824,  it  is  stated  that  David  Howell,  a 
distinguished  lawyer  of  Rhode  Island,  filled  a  chair  of  law 
at  Brown  College,  being  also  Professor  of  Mathematics 
and  Natural  Philosophy;  but  little  is  known  of  his  lectures. 

There  had  been  a  professorship  of  natural  law  in  King's 
College  (Columbia)  in  New  York,  as  early  as  1773;  but 
it  does  not  appear  from  the  records  that  anything  Hke  a 
system  of  education  in  Common  Law,  or  in  the  prepara- 
tion of  young  men  for  the  Bar,  was  intended.  The  Pro- 
fessor probably  taught  political  ethics,  rather  than  law. 
At  the  disruption  of  the  College,  in  1776,  when  the  British 
occupied  New  York,  the  professorship  was  discontinued. 
But  in  1784,  the  College  voted  to  establish  an  elaborate 
curriculum  of  sixteen  professorships  in  the  Faculty  of  Arts, 
eight  in  the  Faculty  of  Medicine,  three  in  the  Faculty  of 
Law  and  a  Faculty  of  Divinity.^  No  further  action  was 
taken  as  to  a  Faculty  of  Law  until  December  2,  1793,  when 
the  trustees  resolved  to  establish  a  professorship  of  law,  with 
a  salary  of  two  hundred  pounds  per  annum,  to  be  paid  out 
of  the  funds  allowed  to  the  College  by  the  Legislature; 
and  James  Kent  was  elected  to  fill  the  chair.^ 

»  The  College  Curriculum  in  the  United  States,  by  Louis  F.  Snow  (1907). 
*  A  pamphlet  entitled  Present  State  of  Learning  in  Columbia  College,  says: 
"This  Professorship  is  intended  to  comprise  a  brief  review  of  the  his- 


350  A  fflSTORY  OF  THE  AMERICAN  BAR 

A  graduate  of  Yale  in  1781,  Kent  had,  at  the  time, 
a  rather  small  practice  in  Poughkeepsie,  but  had  "with 
an  intensity  of  ardor  embarked  in  Federal  politics  and 
quite  gained  an  ascendant  in  the  local  proceedings  and 
discussions." 

".  .  .It  was  the  character  I  had  insensibly  acquired 
as  a  scholar,  and  a  FederaKst,  and  a  presumed  (though 
it  was  not  true)  well  read  lawyer,  that  the  very  first  year 
that  I  removed  to  New  York,  I  was  appointed  a  Professor 
of  Law  in  Columbia  College.  The  influence  of  Dr.  S. 
Bard,  of  Judge  Hobart  (of  the  Supreme  Court),  of  B. 
Livingston,  Edward  Livingston,  and  probably  of  Chief 
Justice  Jay  procured  me  the  appointment."  ^ 

Kent  wrote  regarding  his  course  of  lectures  which  began 
in  November,  1794,  in  the  College  Hall: 

"I  read  that  season  twenty-sLx  lectures  (two  a  week), 
and  was  honored  by  the  attendance,  throughout  the  course, 
of  seven  students  and  thirty-sLx  gentlemen,  chiefly  lawyers 
and  law  students  who  did  not  belong  to  the  college.  .  .  . 
They  were  very  well  received;  but  I  have  long  since  dis- 
covered them  to  have  been  slight  and  trashy  productions. 
I  wanted  judicial  labors  to  teach  me  precision.  I  soon 
became  considerably  involved  in  business,  but  was  never 
fond  of,  nor  much  distinguished  in,  the  contentions  of  the 
Bar." 

tory,  the  nature,  the  several  forms  and  just  ends  of  civil  government  — 
a  sketch  of  the  origin,  progress  and  final  settlement  of  the  government  of 
the  United  States  —  a  particular  detail  of  the  organization  and  duties  of  the 
several  departments  of  the  general  government,  together  with  an  examina- 
tion of  such  parts  of  the  civil  and  criminal  codes  of  the  federal  jurispru- 
dence as  shall  be  most  susceptible  of  illustrations  and  most  conducive  to 
public  utility.  The  constitutions  of  the  several  states  and  the  connections 
they  bear  with  the  general  government  will  then  be  considered  and  the  more 
particular  examination  of  the  constitution  of  this  state.  The  whole  de- 
tail of  our  municipal  law  with  relation  to  the  rights  of  property  and  forms 
of  administrating  justice,  both  civil  and  criminal  will  be  treated  fully  and 
at  large." 
.     1  Memoirs  and  Letters  of  James  Kent,  by  William  Kent  (1898). 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      351 

One  of  his  hearers,  however,  entertained  a  diflerent  view 
of  the  introductory  lecture,  and  described  the  "views  that 
it  unfolds  of  the  true  nature  and  province  of  the  law  and 
of  the  advantages  to  be  derived  from  its  study"  as  "judi- 
cious, discriminating  and  comprehensive."  This  lecture 
was  privately  printed  by  the  Trustees  of  the  College  in 
1794;  and,  the  next  year,  the  first  three  lectures,  or  dis- 
sertations, on  the  Theory,  History  and  Duties  of  Civil  Gov- 
ernment, the  History  of  the  American  Union,  and  the  Laiv 
of  Nations,  were  published  in  book  form  by  the  author. 

Of  these  lectures,  John  Adams  wrote,  in  1795,  to  his  son: 
"I  am  much  pleased  with  the  Lecture  and  esteem  the 
talents  and  character  of  the  Professor."  When  he  closed 
his  course,  in  March,  1795,  Kent  wrote  that  his  lectures 
had  extended  not  only  through  the  Constitution  and 
jurisprudence  of  the  Union,  the  Constitution  of  this  and 
the  other  States,  but  our  doctrine  of  real  property. 

"My  first  plan  was  to  examine  law  of  personal  property, 
including  the  commercial  branches  and  the  system  of  our 
criminal  code.  But  I  found  myself  absolutely  unable 
to  complete  the  whole,  and  was  obliged  to  leave  this  first 
course  imperfect.  It  will  be  an  easy  thing  to  make  these 
additions  and  review  and  improve  the  whole  by  next 
November." 

As  a  matter  of  fact,  Kent  never  did  completely  "make 
these  additions,"  until  his  later  lectures  delivered  in  1824, 
but  the  earlier  lectures,  together  with  the  later,  formed  the 
nucleus  of  his  famous  Commentaries. 

Of  his  second  course,  begun  in  November,  1795,  Kent 
wrote : 

"I  read  thirty-one  lectures  in  my  office,  and  had  only 
two  students,  besides  my  clerks.  The  next  season  I  at- 
tempted another  course;  but,  no  students  offering  to 
attend,  I  dismissed  the  business,  and  in  IMay,  1797,  sent 


352  A  HISTORY  OF  THE  AMERICAN  BAR 

a  letter  of  resignation  to  the  Trustees.  This  was  not  ac- 
cepted; and,  in  the  winter  of  1797  and  1798,  in  my  office, 
I  read  lectures  to  six  or  eight  students;  and,  in  April,  1798, 
I  finally  resigned  the  office." 

In  his  letter  of  resignation  to  the  Trustees  he  expressed 
the  hope 

"that  the  general  principles  of  our  Constitution  and  laws 
may  still  be  academically  taught,  and  that  the  institution 
which  you  have  so  Hberally  established  may  hereafter 
under  abler  professors,  and  in  more  auspicious  times  be 
crowned  with  happier  success." 

Though  unsuccessful  as  a  Professor,  Kent's  claims  as 
a  profound  lawyer  were  recognized,  in  this  same  year,  by 
his  appointment  as  a  Judge  of  the  Supreme  Court,  by  John 
Jay,  Governor  of  New  York.  He  was,  at  the  tune,  just 
thirty-five  years  of  age.  It  would  be  unjust,  however,  to 
Kent's  fame  as  a  jurist  to  attribute  the  failure  of  his  law 
course  to  any  lack  of  legal  ability.  Unquestionably,  the 
heated  poHtical  rancor  of  the  time,  the  sharp  division  of 
parties,  and  the  constant  newspaper  and  pamphlet  dis- 
cussion of  Federahst  and  Anti-Federalist  principles  caused 
the  students  of  those  days  to  regard  these  lectures  as  more 
poHtical  in  their  nature  than  legal.  And  while  the  lec- 
turer's views  on  constitutional  law  were  broad  and  scientific, 
they  were  essentially  Federalist,  —  saturated  with  Alex- 
ander Hamilton,  and  presenting  a  view  of  the  power  of 
the  courts  which  was  not  popular  with  the  rising  tide  of 
Republican,  anti-John-Adams  lawyers  and  la^-men.^ 

1  The  high  conception  of  the  place  of  a  lawyer  and  of  his  duty  to  know 
the  Constitution  in  a  Republic,  is  shown  in  the  following  extracts  from 
Kent's  introductory  lecture: 

"The  importance  of  a  knowledge  of  our  Constitutional  principles  as  a 
part  of  the  education  of  an  American  lawyer  arises  from  the  uncommon 
efficacy  of  our  courts  of  justice  in  being  authorized  to  bring  the  validity  of 
a  law  to  the  test  of  the  Constitution.  ...  I  consider  them,  the  courts  of 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      353 

In  the  same  year  of  Kent's  resignation  at  Columbia, 
1798,  there  was  founded  the  first  collegiate  law  professor- 
ship intended  for  other  than  undergraduates,  which  had 
any  permanency.  It  is  certainly  striking  that  this  event 
should  have  occurred  in  a  little  frontier  town  of  about  seven- 
teen hundred  inhabitants  —  at  the  University  of  Transyl- 
vania in  Lexington,  Kentucky,  This  institution  was 
chartered  in  1798,  and  in  the  next  year  the  law  department 
was  organized,  with  George  Nicholas  as  Professor  of  Law 
and  Pohtics.  On  his  death,  the  same  year,  he  was  suc- 
ceeded by  James  Brown,  who  held  the  office  until  1804. 
In  that  year,  Henry  Clay,  a  young  man  of  twenty-seven, 
who  had  been  at  the  Bar  seven  years,  was  appointed,  and 
held  the  professorship  until  1807.  He  was  succeeded  by 
John  Monroe,  in  1807.  Then  the  office  lapsed;  but  was 
revived  in  1814,  when  John  Pope  held  it  until  1816,  suc- 
ceeded by  Joseph  Cabell  Breckenridge,  in  1817. 

The  University,  though  small  and  local,  had,  by  1802, 
acquired  a  library  of  1,700  volumes  and  also  a  separate 

justice,  as  the  proper  and  intended  guardians  of  our  limited  Constitution 
against  the  factions  and  encroachments  of  the  legislative  body. 

"...  A  law>'er  in  a  free  country  .  .  .  should  be  a  person  of  irreproach- 
able virtue  and  goodness.  He  should  be  well  read  in  the  whole  circle  of 
the  arts  and  sciences.  He  should  be  fit  for  the  administration  of  public 
affairs  and  to  govern  the  Commonwealth  by  his  councils,  establish  it  by  his 
laws  and  correct  it  by  his  example. 

"The  people  of  this  country  are  under  singular  obligations  from  the 
nature  of  their  government  to  place  the  study  of  the  law  at  least  on  a  level 
with  the  pursuits  of  classical  learning.  The  art  of  maintaining  social  order 
and  promoting  social  prosperity  is  not  with  us  a  myster>'  for  only  those 
who  may  be  distinguished  by  the  adventurous  advantages  of  birth  and 
fortune.  ...  A  wide  field  is  open  to  all  —  all  may  be  summoned  into  public 
emplo>Tnent.  .  .  .  Extensive  legal  and  political  knowledge  is  requisite  to 
render  men  competent  to  administer  the  government.  A  general  initiation 
into  the  elementary  learning  of  our  law  has  a  tendency  to  guard  against 
mischief  and  at  the  same  time  to  promote  a  keen  sense  of  right  and  warm 
love  of  Freedom." 


3 54  a:  HISTORY  OF  THE  AMERICAN  BAR 

law  library.  In  1814,  out  of  a  total  attendance  of  62,  nine 
were  law  students;  and,  in  1818,  the  University  had  a 
total  of  no  students,  or  fully  half  the  number  then  in 
Harvard  College. 

Three  years  after  Kent's  resignation  at  Columbia,  the 
Corporation  of  Yale  College  again  took  up  the  subject  of 
legal  education,  and,  as  a  part  of  President  Dwight's 
efforts  to  broaden  the  scheme  of  studies,  voted  to  estab- 
lish a  professorship  of  law: 

"to  furnish  lectures  on  the  leading  principles  of  the  Law 
of  Nature  and  Nations,  on  the  general  principles  of  civil 
government,  particularly  of  Republican  representative 
government,  on  the  Constitution  of  the  United  States 
and  of  the  State  of  Connecticut  .  .  .  and  on  the  various 
obligations  and  duties  resulting  from  the  social  relations, 
especially  those  which  arise  from  our  own  National  and 
State  Governments." 

''•  After  that  date,  no  lectures  were  given  until  1826,  when 
the  Hon.  Elizur  Goodrich,  of  the  Class  of  1779,  was  ap- 
pointed to  the  chair,  and  gave  occasional  lectures  until 
1810;  ^  after  which  date,  no  regular  lectures  were  given 
until    1826,   when   the   Kent   Professorship   was   founded 

"for  delivering  lectures,  or  otherwise  communicating  in- 
struction to  the  undergraduates  in  the  academic  depart- 
ment in  natural,  international,  constitutional  or  municipal 
law,  and  ci\il  pohty,  and  such  other  subjects  of  juris- 
prudence as  the  Faculty  or  Corporation  shall  from  time 
to  time  approve." 

The  Yale  Law  School,  as  a  separate  institution,  did  not 
confer  degrees  until  1843.^ 

1  President  Dwight,  in  his  Travels  in  New  England,  published  in  1821, 
says:  "The  Professor  of  Law  at  Yale  is  required  to  read  36  lectures  only, 
to  be  completed  in  two  years,  on  the  Law  of  Nations,  the  American  Consti- 
tution, and  the  Jurisprudence  of  Connecticut." 

*  See  Yale  in  its  Relation  to  Law  in  Yale  Law  Journal,  Vol.  XI  (1901). 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      353 

Princeton  College  offered  instruction  in  law  to  under- 
graduates, 1 795-181 2,  by  its  President  Samuel  S.  Smith, 
whose  lectures,  as  appears  from  the  title  page  of  vol.  2  of 
his  Moral  and  Political  Philosophy  (18 12),  comprehended 
"those  principles  on  the  subjects  of  jurisprudence,  politics 
and  public  law  or  the  law  of  nature  and  nations,  with 
which  every  man  ...  in  a  free  country  ought  to  be 
acquainted."  ^ 

At  Dartmouth  College,  as  early  as  1808,  the  Trustees,  a 
large  number  of  whom  were  eminent  lawyers,  planned  to 
establish  a  law  professorship,  and  accordingly  passed  the 
following  vote  January  7,  1818:^ 

''Whereas,  An  establishment  of  Professorships  in  different 
branches  of  education  at  universities  facilitates  improve- 
ment; and  as  a  more  general  acquaintance  with  the  im- 
portant science  of  law  would  be  greatly  conducive  to  the 
welfare  and  prosperity  of  the  citizens  of  our  country;  and 
as  in  promoting  that  end  the  establishment  of  a  Professor- 
ship of  Law  at  this  university  is  highly  desirable;  Therefore, 

''Resolved,  Unanimously  that  this  board  will  proceed  to 
establish  a  Professorship  of  Law  and  appoint  a  suitable 
person  to  the  office  so  soon  as  adequate  means  shall  be 
furnished.  And  as  all  the  present  funds  are  necessarily 
applied  to  other  objects  of  education  the  liberal  and  patriotic 
are  earnestly  solicited  to  favor  and  promote  by  their  muni- 
ficence the  early  accomplishment  of  this  design. 

"  Voted,  that  the  secretary  be  requested  to  cause  a  suit- 
able number  of  subscription  papers  to  be  printed  for  the 
purpose  of  aiding  the  object  contemplated  in  the  foregoing 
resolution." 

Owing  to  the  factional  troubles  which  prevailed  among 
the  governing  officials  of  the  College,  and  which  finally 

»  See  Colkgmte  Study  of  Law,  by  James  F.  Colby,  Amer.  Bar  Ass.  Proc, 
Vol.  XIX  (1896). 

-  See  Legal  and  Political  Studies  in  Dartmouth  Colkge,  by  James  F. 
Colby  (1896). 


3s6  A  HISTORY  OF  THE  AMERICAN  BAR 

culminated  in  the  famous  Dartmouth  College  Case,  in  1817, 
no  action  was  taken  under  this  vote  for  many  years. 

In  1816,  the  Regents  of  the  University  of  Maryland 
established  a  professorship  of  law,  and  appointed  David 
Hofiman.  He  however  gave  no  regular  course  of  lectures; 
but,  in  his  own  words: 

"In  America  alone,  a  law  student  was  left  to  his  own 
insulated  and  unassisted  efforts.  In  the  hope  of  supplying 
what  I  deemed  an  important  deficiency  in  the  educa- 
tion of  our  country,  I  have  since  my  appointment  to  the 
law  chair  devoted  myself  to  performing  a  course  of  lectures, 
and  sketched  a  plan,  laid  before  the  public  in  my  Syllabus 
(April,  182 1),  embracing  every  title  knov/n  to  the  great 
body  of  law,  exceeding  in  variety  and  extent  any  scheme 
of  lectures  hitherto  attempted.  I  prepared  A  Course  of 
Legal  Study  —  the  first  manual  ever  arranged  for  law 
students  in  England  or  this  country  (pubKshed  in  1817),"  ^ 

Later,  from  182 1  to  1826,  Hoffman  conducted  a  struggHng 
"Law  Institute,"  a  private  affair  of  his  own,  to  which  he 
proposed  to  deliver  his  stupendous  course  of  301  lectures, 
combined  with  a  most  elaborate  system  of  Moot  Courts  — 
his  fee  being  $120.  From  lack  of  interest  or  the  expense, 
the  number  of  students  was  small,  and  the  school  gradu- 
ally died  out. 

In  1816,  Middlebury  College  in  Vermont  established  a 
professorship  of  law,  which  attracted  considerable  atten- 
tion, because  of  its  incumbent,  the  noted  Nathaniel  Chip- 
man,  Chief  Justice  of  Vermont.^ 

^  An  Address  to  Students  of  Law  in  tite  United  States,  by  David  Hoffman 
(July,  1824). 

For  further  information  as  to  Hoffman's  work,  see  his  Syllabus  (April, 
1821);  his  First  Lecture,  on  Law  Books  and  Instruction,  published  in  Oct., 
1823;  his  Second  Lecture,  published  in  1825;  his  Third  Lecture  on  Moot 
Courts,  In  1826,  and  his  Ninth  Lecture  on  Civil  Law,  in  1832. 

2  See  Life  of  Nathaniel  Chipman,  by  Daniel  Chipman  (1846). 


EARLY  LAW  PROFESSORSHIPS  AND   SCHOOLS      357 

The  system  of  study  advocated  was  described  by  Chip- 
man,  in  his  introductory  lecture: 

"Let  the  student  not  content  himself  with  merely  learn- 
ing to  recollect  or  repeat  the  arguments  or  reasons  which 
he  has  met  with  in  reading  as  the  arguments  or  reasons 
of  others;  but  let  him  endeavor  so  to  penetrate,  under- 
stand and  appropriate  them  that  they  may  appear  to  his 
mind  to  be  exclusively  his  own.  The  former  is  mere  mem- 
ory; the  latter  only  is  knowledge.  .  .  .  All  this,  the  at- 
tentive student  will  find  in  the  volumes  of  Blacksto?ie, 
which  as  an  elementary  treatise,  has  not  been  surpassed 
in  any  science.  The  next  step  proper  to  be  taken  by  the 
students  is  to  proceed  analytically;  to  begin  with  one 
branch  and  the  minor  divisions  of  that  branch,  to  make 
himself  fully  master  of  it;  and  then  and  not  till  then,  to 
proceed  to  another  branch,  until  he  shall  have  encompassed 
within  his  knowledge  the  whole  system  complete.  In 
his  course  of  reading  it  is  indispensable  for  him  if  he  wishes 
to  make  proficiency  to  turn  to  all  the  cases  and  authorities 
and  to  examine  them  for  himself." 

It  will  be  readily  seen  that  none  of  these  professorships 
attempted  to  afford  a  complete  or  practical  education  for 
law  students.  Towards  the  end  of  the  Eighteenth  Century, 
however,  several  private  law  schools  had  been  founded  by 
individual  lawyers,  where  such  an  education  could  be 
obtained. 

Of  these,  the  first  and  by  far  the  most  influential  was 
that  founded  by  Judge  Tapping  Reeve,  and  kno^\Ti  as  the 
Litchfield  Law  School.  Oddly  enough,  this  School,  to 
which  students  came  from  all  parts  of  the  Union,  grew  up, 
not  in  any  city  or  seat  of  learning,  but  in  a  little  country 
town  of  Connecticut,  a  county  seat,  having  hardly  more 
than  fifteen  hundred  inhabitants,  the  home  of  the  distin- 
guished Wolcott  family,  the  birthplace  of  several  Governors 
and  Chief  Justices  of  the  Colony  and  of  the  State. 

Here  Judge  Tapping  Reeve  began  his  own  School  for 


35S  A  fflSTORY  OF  THE  AMERICAN  BAR 

law  students,  in  1784/  five  years  after  Wythe  was  made 
professor  of  law  at  William  and  Mary,  five  years  before 
the  establishment  of  the  United  States  Supreme  Court, 
and  five  years  before  the  publication  (in  Connecticut)  of 
the  first  volume  of  American  law  reports.  Judge  Reeve 
was  born  in  Long  Island,  New  York,  in  1744,  a  graduate 
of  Princeton  (then  the  College  of  New  Jersey),  in  1763, 
studied  law  with  Jesse  Root  ^  at  Hartford,  and  settled  in 
Litchfield  in  1772.  Five  years  after  he  started  his  School, 
he  was  appointed  Judge  of  the  Superior  Court,  and  he 
became  later  Chief  Justice. 

In  1798,  one  of  his  pupils,  James  Gould,  then  a  practis- 
ing lawyer  in  Litchfield,  born  in  1770,  and  a  Yale  graduate 
of  1795,  became  associated  with  him.  Later  Jabez  W. 
Huntington  ^  assisted  Judge  Gould  as  an  instructor.  Judge 
Reeve  died  in  1823,  and  Judge  Gould  had  sole  charge  until 

1833- 
Prior  to  1798,  the  School  had,  in  all,  about  210  students. 

From  1798  to  its  abandonment,  in  1833,  there  were  805 

students. 

As  proof  of  the  national  character  of  the  School,  it  is 

interesting  to  note,  that  from  1798  down  to  the  founding 

of  the  Harvard  Law  School  in  181 7,  the  students  (other 

1  Address  of  Prof .  James  Barr  Ames,  at  the  dedication  of  the  new  build- 
ing of  the  Law  Department  of  the  University  of  Pennsylvania  (1900). 

A  writer  in  the  Albany  Law  Journal,  Vol.  XX,  in  an  article  on  the  Litch- 
field Law  School,  says  that  it  was  established  in  1782;  and  so  it  appears  in 
the  catalogue  of  the  School,  published  in  1831.  Professor  Joel  Parker,  of 
the  Harvard  Law  School,  and  other  law  writers,  give  the  correct  date, 
however,  as  being  1784.  See  The  Law  School  of  Harvard  College,  by  Joel 
Parker  (1871). 

*  Jesse  Root  was  graduated  at  Princeton  in  1756,  became  a  preacher, 
was  admitted  to  the  Bar  as  a  lawyer  in  1763,  and  after  serving  as  colonel  in 
the  war  and  a  member  of  the  Continental  Congress,  became  a  judge  of  the 
Superior  Court. 

'  Jabez  W.  Huntington  graduated  at  the  School  in  1808,  was  later  United 
States  Senator,  and  a  judge  of  the  Connecticut  Supreme  Court. 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      359 

than  those  from  Connecticut)  hailed  from  the  following 
locaUties:  Massachusetts,  72;  New  York,  44;  Georgia, 
35;  South  Carolina,  27;  Maryland,  25;  New  Hampshire, 
15;  Vermont  and  Delaware,  14  each;  Rhode  Island,  11; 
Kentucky,  9;  Pennsylvania,  8;  New  Jersey  and  North 
Carolina,  7  each;  Virginia,  6;  Louisiana,  3;  District  of 
Columbia  and  Ohio,  2  each;  Maine  and  Mississippi,  i  each. 
Of  its  alumni  —  16  became  United  States  Senators;  50 
Members  of  Congress;  40  Judges  of  higher  State  courts; 
8  Chief  Justices  of  State  courts;  2  Justices  of  the  United 
States  Supreme  Court;  10  Governors  of  States;  5  Members 
of  the  Cabinet.  And  as  Professor  Joel  Parker  of  the  Har- 
vard Law  School  said  in  1871:^ 

"Probably  no  law  school  has  had  —  perhaps  I  may  add 
never  will  have  —  so  great  a  proportion  of  distinguished 
men  on  its  catalogue,  if  for  no  other  reason,  because  at- 
tendance upon  a  law  school  was  then  the  rare  exception, 
an  advantage  obtained  in  general  only  by  very  ambitious 
young  men,  and  because  there  was  then  much  less  compe- 
tition for  the  office  and  honors  to  which  they  aspired." 

A  contemporary  opinion  of  the  School  is  interesting.  In 
18 13,  it  had  fifty-four  students,  the  largest  in  any  one  year 
of  its  liistory;  and  about  that  time,  Timothy  D\^'ight 
wrote :  ^ 

*'It  would  not,  it  is  beheved,  do  discredit  to  any  country. 
Law  is  here  taught  as  a  science,  and  not  merely  nor  prin- 
cipally as  a  mechanical  business;  not  as  a  collection  of 
loose  independent  fragments,  but  as  a  regular  well  com- 
pacted system.  At  the  same  time,  the  students  are  taught 
the  practice  by  being  actually  employed  in  it.     A  court 

1  Litchfield  Hill,  by  John  D.  Champlin,  quoted  in  the  Catalogue  of  1900, 
prepared  by  George  M.  Woodruff  and  Archibald  M.  Howe. 

The  Law  School  of  Harvard  College,  by  Joel  Parker  (1S71). 

2  Travels  in  Nrw  England,  by  Timothy  Du-ight,  Vol.  IV.  See  also  Litchfield 
Law  School  —  Albany  Law  Journal,  Vol.  XX  (1879). 


36o  A  fflSTORY  OF  THE  AMERICAN  BAR 

is  constituted,  actions  are  brought  and  conducted  through 
a  regular  process,  questions  are  raised  and  the  students 
become  advocates  in  form.  Students  resort  to  this  school 
from  every  part  of  the  American  Union.  The  number  of 
them  is  usually  about  forty." 

The  catalogue  of  the  Litchfield  School  gave  the  following 
detailed  account  of  the  schedule  of  its  course  and  prices: 

"  According  to  the  plan  pursued  by  Judge  Gould,  the  law 
is  divided  into  forty-eight  titles,  which  embrace  all  its 
important  branches,  and  of  wliich  he  treats  in  systematic 
detail.  These  titles  are  the  result  of  thirty  years'  severe  and 
close  application.  They  comprehend  the  whole  of  his  legal 
reading  during  that  period,  and  continue  moreover  to  be 
enlarged  and  improved  by  modern  adjudications.  ; 

"  The  lectures,  which  are  deUvered  every  day,  and  which 
usually  occupy  an  hour  and  a  half,  embrace  every  princi- 
ple and  rule  falKng  under  the  several  divisions  of  the  dif- 
ferent titles.  These  principles  and  rules  are  supported  by 
numerous  authorities,  and  generally  accompanied  with 
familiar  illustrations.  Whenever  the  opinions  upon  any 
point  are  contradictory,  the  authorities  in  support  of 
either  doctrine  are  cited,  and  the  arguments,  advanced  by 
either  side,  are  presented  in  a  clear  and  concise  manner, 
together  with  the  lecturer's  own  views  of  the  question. 
In  fact,  every  ancient  and  modern  opinion,  whether  over- 
ruled, doubted  or  in  any  way  qualified,  is  here  systemati- 
cally digested. 

"  These  lectures,]  thus  classified,  are  taken  down  in  full 
by  the  students,  and  after  being  compared  with  each  other, 
are  generally  transcribed  in  a  more  neat  and  legible  hand. 
The  remainder  of  the  day  is  occupied  in  examining  the 
authorities  cited  in  support  of  the  several  rules,  and  in 
reading  the  most  approved  authors  upon  those  branches 
of  the  law,  which  are  at  the  time  the  subject  of  the  lectures.^ 

^  Those  interested  in  this  early  law  school  method  may  find  a  collec- 
tion of  notes  of  Judge  Gould's  lectures  now  in  the  Harvard  Law  School 
Library,  complete  in  three  manuscript  volumes,  presented  by  W.  S.  Andrews 
of  Boston.  See  Harv.  Coll.  Arch.  Reports,  Report  of  Law  Librarian,  July  12, 
i86i. 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      361 

"  These  notes,  thus  written  out,  when  complete,  are  com- 
prised in  five  large  volumes,  which  constitute  books  of 
reference,  the  great  advantages  of  which  must  be  apparent 
to  every  one  of  the  slightest  acquaintance  with  the  com- 
prehensive and  abstruse  science  of  the  law. 

"  The  examinations,  which  are  held  every  Saturday,  upon 
the  lectures  of  the  preceding  week,  consist  of  a  thorough 
investigation  of  the  principles  of  each  rule,  and  not  merely 
of  such  questions  as  can  be  answered  from  memory  without 
any  exercise  of  the  judgment.  These  examinations  are 
held  by  Jabez  W.  Huntington,  Esq.,  a  distinguished  gentle- 
man of  the  Bar,  whose  practise  enables  him  to  introduce 
frequent  and  familiar  illustrations,  which  create  an  interest, 
and  serve  to  impress  more  strongly  upon  the  mind  the 
knowledge  acquired  during  the  week. 

"  There  is  also  connected  with  this  institution  a  Moot 
Court  for  the  argument  of  law  questions,  at  which  Judge 
Gould  presides.  The  questions  that  are  discussed  are 
prepared  by  him  in  the  forms  in  which  they  generally  arise. 
These  courts  are  held  once  at  least  in  each  week,  two 
students  acting  as  counsellors,  one  on  each  side,  and  the 
arguments  that  are  advanced,  together  with  the  opinion 
of  the  judge,  are  carefully  recorded  in  a  book  kept  for 
that  purpose.  For  the  preparation  of  these  questions,  access 
may  at  all  times  be  had  to  an  extensive  Ubrary.^ 

'"  Besides  these  courts,  there  are  societies  established  for 
improvement  in  forensic  exercises,  which  are  entirely 
under  the  control  of  the  students. 

"The  whole  course  is  completed  in  fourteen  months, 
including  tw^o  vacations  of  four  weeks  each,  one  in  the 
spring,  the  other  in  the  autumn.  No  student  can  enter 
for  a  shorter  period  than  three  months.  The  terms  of  in- 
struction are  $100  for  the  first  year,  and  $50  for  the  second, 
payable  either  in  advance  or  at  the  end  of  the  year." 

It  remained,  however,  for  Harvard  College  to  establish 
the  first  public  school  of  law  which  has  remained  perma- 
nently in  existence  since  its  founding. 

1  It  is  said  that  the  law  library  of  Judge  Gould  was  then  the  largest  and 
best  in  the  United  States. 


362  A  HISTORY  OF  THE  AISIERICAN  BAR 

In  1S15,  largely  through  the  efforts  of  John  Lowell,  Jr., 
that  College  established  a  professorship  of  law  for  the 
benefit  of  College  seniors  and  resident  graduates;  and  to 
fill  this  place,  Isaac  Parker,  Chief  Justice  of  the  Massa- 
chusetts Supreme  Court,  was  appointed. 

i  After  lecturing  for  one  year,  Parker  was  convinced  that 
attendance  at  lectures  in  this  way  did  not  furnish  an  ade- 
quate legal  education  for  any  young  man  desiring  to  enter 
upon  the  profession.  He  accordingly  suggested  that  a 
separate  school  of  law  should  be  constituted;  and  in  pur- 
suance of  his  plan,  the  Harvard  Law  School  was  estabhshed 
May  14,  181 7,  and  Asahel  Stearns  was  appointed  its  Pro- 
fessor. For  twelve  years  Stearns  and  Parker  conducted 
the  School.  The  system  of  education,  as  described  in 
Professor  Stearns'  report  of  1826,  was  as  follows: 

"  I.  Recitations  and  Examinations  in  several  of  the  most 
important  text  books,  such  as  Blackstone's  Commentaries, 
Cruise  on  Real  Property,  Saunders  on  Uses,  Fearne  on  Re- 
mainders, etc. 

"  In  these  exercises  the  points  of  difference  between  the 
law  of  England  and  of  our  own  country  are  carefully  dis- 
tinguished and  the  grounds  and  occasions  of  the  difference 
are  fully  explained  to  the  students. 

"2.  Written  lectures  embracing  a  general  course  of  legal 
instruction,  in  which  those  parts  of  our  system  of  juris- 
prudence in  which  we  do  not  adopt  the  law  of  England 
are  particularly  noticed,  and  the  grounds  of  our  departure 
from  it  are  explained  and  illustrated  by  the  decisions  and 
practice  of  our  own  courts. 

"3.7!  Moot  Court  in  which  questions  are  regularly  argued 
(often  at  considerable  length)  before  the  Professor,  who 
pronounces  an  opinion.  In  these  fictitious  actions  the 
pleadings,  bills  of  exceptions,  demurrers  to  evidence,  special 
verdicts  and  motions  in  arrest  of  judgment  or  for  a  new 
trial  are  drawn  up  in  form  by  the  students.  —  During 
the  argument  those  students  who  are  not  of  counsel 
are  employed  in  taking  minutes,  with  a  view  to  the  ac- 


EARLY  LAW  PROFESSORSHIPS  AND   SCHOOLS      363 

quisition  of  facility  and  accuracy  preparatory  to  prac- 
tice. The  cases  to  be  argued  are,  of  course,  adapted  to 
the  progress  of  the  respective  students  in  their  professional 
studies.  But  they  are  strongly  urged  to  engage  in  them 
very  soon  after  their  commencement;  it  having  been 
found  by  experience  that  no  other  exercise  is  so  powerful 
an  excitement  to  industry  and  emulation  or  so  strongly 
interests  the  students  in  their  professional  pursuits. 

"  4.  Debating  Clubs  including  all  the  members  of  the  Law 
School  in  which  some  question  (generally  in  moral  phi- 
losophy, political  economy  or  civil  polity)  which  admits 
an  extended  and  free  discussion,  is  debated  once  a  week 
with  a  view  to  improvement  in  extempore  elocution. 

''5.  Written  dissertations  by  the  student  upon  some  title 
or  branch  of  the  law  or  the  history  of  some  department 
of  legal  or  political  science." 

The  number  of  scholars,  however,  was  small,  never  exceed- 
ing twenty,  and  finally,  in  1829,  becoming  reduced  to  one. 

The  legal  profession  had  not  yet  fully  accepted  the 
idea  that  law  could  be  learned  in  a  law  school  as  well  as 
in  a  law  office.  Moreover,  at  this  time,  the  difficulty  of 
access  to  Cambridge,  owing  to  the  non-existence  of  rail- 
way communication,  and  the  rise  of  other  law  schools, 
more  convenient  for  attendance,  were  great  obstacles  to 
the  success  of  the  Harvard  Law  School. 

Thus  Peter  S.  DuPonceau,  the  noted  Philadelphia  law- 
yer, said  in  182 1: 

''If  that  justly  celebrated  Seminary  [Harvard  Law 
School]  were  situated  elsewhere  than  in  one  of  the  most 
remote  parts  of  our  Union,  there  would  be  no  need  per- 
haps of  looking  to  this  city  for  the  completion  of  the  object 
which  we  have  in  view.  Their  own  sagacity  would  suggest 
to  them  the  necessity  of  appointing  additional  professors 
for  each  important  branch  of  our  legal  system  and  thus 
under  their  hand  would  gradually  rise  a  noble  temple  dedi- 
cated to  the  study  of  our  national  jurisprudence.  But  their 
local  situation  and  that  alone  precludes  every  such  hope; 


364  A  fflSTORY  OF  THE  AMERICAN  BAR 

for  otherwise  the  world  well  knows  that  they  are  neither; 
wanting  in  inclination  or  ability  to  pursue  any  great  object 
that  may  redound  to  their  fame  and  the  benefit  of  their 
country." 

The  principal  other  competing  law  schools  between 
1820  and  1830  were  as  follows:  at  New  Haven,  Conn., 
a  private  law  school  kept  by  Seth  R.  Staples  and  Samuel 
J.  Hitchcock  was  in  thriving  existence  from  about  1800  to 
1824,  at  which  latter  date  the  noted  Judge  David  Daggett 
became  its  head.  In  1826,  Judge  Daggett  was  appointed 
to  fill  the  vacant  professorship  of  law  in  the  academic 
department  of  Yale  College  (previously  held  by  Elizur 
Goodrich,  from  1801   to  18 10). 

In  Philadelphia,  a  "Law  Academy"  was  founded  by 
Peter  S.  DuPonceau  in  182 1,  which  afforded  an  oppor- 
tunity for  students  of  law  to  attend  lectures  by  the  emi- 
nent practitioners  of  that  city. 

In  Virginia,  Dr.  Thomas  Cooper  had  been  elected  tem- 
porary Professor  of  Law  in  the  University  of  Virginia,  in 
1 81 7;  and,  after  declinations  by  Francis  W.  Gilmer  and 
his  brother-in-law  William  Wirt,  John  Taylor  Lomax  had 
been  appointed  permanent  Professor  in  1826.-^ 

The  College  of  WiUiam  and  Mary  continued  to  furnish 
an  ample  course  of  legal  education.  There  were  also  in 
Virginia  several  local  private  law  schools,  the  most  noted  being 
that  founded  by  Judge  Creed  Taylor  in  182 1  at  Needham, 
Va.jthe  average  attendance  of  students  at  which  was  twenty.^ 

In  Massachusetts,  the  noted  private  school  at  North- 
ampton founded  by  Judge  Samuel  Howe  and  Hon.  Elijah 
H.  Mills,  assisted  by  John  Hooker  Ashmun,  flourished  from 
1823  to  1829,  with  a  yearly  average  attendance  of  ten  stu- 

1  See  Jeferson,  Cabell,  and  the  University  oj  Virginia,  by  John  S.  Patton 
(1906). 

2  See  Journal  of  the  Law  School  and  of  the  Moot  Courts  attached  to  it  at 
Needham  in  Virginia,  by  Creed  Taylor  (1822). 


EARLY  LAW  PROFESSORSHIPS  AND  SCHOOLS      365 

dents.  In  October,  1828,  the  eminent  Theron  Metcalf 
(later  Reporter  of  Decisions  and  Judge  of  the  Massachu- 
setts Supreme  Court)  opened  a  law  school  at  Dedham.' 

In  June,  1829,  a  law  school  was  opened  at  Amherst  by 
Samuel  F.  Dickinson,  referring  to  which  the  American 
Jurist,  Vol.  VIII  (1829),  said  editorially:  ''We  are  glad 
to  witness  the  efforts  which  are  making  to  render  lav/  edu- 
cation in  this  country  thorough  and  systematic." 

In  1830,  however,  the  Harvard  Law  School  became  a 
thriving  institution  at  one  bound,  when  by  the  munificence 
of  Nathan  Dane  in  establishing  from  the  profit  of  his 
Abridgment  of  American  Law  a  new  professorship,  Joseph 
Story,  then  Judge  of  the  Supreme  Court,  was  appointed 
to  fill  the  position.  Under  the  guidance  of  this  great  Judge 
and  of  his  distinguished  colleague,  John  Hooker  Ashmun, 
and  later  the  celebrated  Simon  Greenleaf,  this  institution  be- 
came within  a  few  years  the  leading  law  school  in  the  land.^ 

'  See  American  Jurist,  Vol.  VIII  (1829);  and  Theron  Metcalf,  by  George 
S.  Hale,  Mass.  Hist.  Soc.  Proc.  (1876). 

*  See  History  of  the  Harvard  Law  School,  by  Charles  Warren  (1908). 
In  addition  to  the  law  schools  mentioned  in  the  text,  the  following  were 
established  between  1830  and  i860:  Cincinnati  College  Law  School,  in 
1833;  Carlisle  Law  School,  in  1836;  Indiana  University  Law  School  at 
Bloomington,  and  Cumberland  University  Law  School  at  Lebanon,  Ten- 
nessee, in  1842;  Louisville  University  Law  School,  in  1846;  North  Caro- 
lina University  Law  School  at  Chapel  Hill,  from  1846  to  1848  (reopened 
in  1875);  Tulanc  University  of  Louisiana  Law  School,  at  New  Orleans,  in 
1847;  Washington  and  Lee  University  Law  School  at  Lexington,  Virginia, 
in  1849;  Albany  Law  School,  in  1851;  University  of  Pennsylvania  Law 
School,  in  1852;  Columbia  College  Law  School,  and  the  University  of  the 
City  of  New  York  Law  School,  in  1858;  University  of  Georgia  Law  School 
at  Athens,  University  of  Michigan  Law  School  at  Ann  Arbor,  and  Univer- 
sity of  Chicago  Law  Department  (later,  in  1873,  the  Union  College  of  Law 
and  since  1882  a  department  of  the  Northwestern  University),  in  1859. 
See  list  given  in  Influence  of  the  Bar  in  Our  Stale  and  Federal  Governments, 
by  J.  H.  Benton,  Jr.  (1894).  See  also  Report  of  the  Commissioner  of 
Education  for  the  year  iSgo-gi,  Vol.  I  (U.  S.  1894),  and  History  of  the 
Harvard  Law  School,  Vol.  H,  chap.  XLVIII. 


CHAPTER  XV 

THE   FEDERAL  BAR  AND  THE   LAW,    1815-183O 

The  years  from  1815  to  1830  were  an  era  of  great  cases 
and  great  la^vyers. 

At  the  beginning  of  this  period  it  is  to  be  noted  that  the 
Federal  Bar  was  still  ahnost  entirely  Eastern  in  its  com- 
position ^  —  a  fact  well  illustrated  by  an  entry  by  John 
Quincy  Adams  in  his  Diary,  October  30,  1817: 

"The  President  said  ...  he  had  written  this  morning 
Mr.  Wirt  of  Richmond,  Virginia,  offering  him  the  office 

1  Ten  new  States  had  been  admitted  into  the  Union  prior  to  1830. 
Kentucky  was  admitted  in  1792.     Its  first  law  reports  were  Hughes'  Re- 
ports in  1803,  the  next,  Hardin's  in  1810. 

Tennessee  was  admitted  in  1796.    Its  first  law  reports  were  Overton's  in 

1813. 

Ohio  was  admitted  in  1802.    Its  first  law  reports  were  Hammond's  in 

1824. 

LoMWJawo  was  admitted  in  181 2.  Its  first  law  reports  were  Martin's,  pub- 
lished in  181 1  for  the  Territorial  decisions. 

hidiana  was  admitted  in  1816.  Its  first  law  reports  were  Isaac  Black- 
ford's in  1830. 

Mississippi  was  admitted  in  181 7.  Its  first  law  reports  were  Robert  J. 
Walker's  in  1834. 

Illinois  was  admitted  in  1818.    Its  first  law  reports  were  Sidney  Breese's 

in  1831. 

Alabama  was  admitted  in  1819.    Its  first  law  reports  were  Henry  Minor's 

in  1829. 

Maine  was  admitted  in  1820.  Its  first  law  reports  were  Simon  Green- 
leaf's  in  1822. 

Missouri  was  admitted  in  182 1.    Its  first  law  reports  were  Priestly  H. 

McBride's  in  1829. 

Georgia's  first  law  reports  were  Thomas  U.  P.  Charlton's  in  1824. 


THE  FEDERAL  BAR  AND   THE  LAW,   i8i 5-1830     367 

of  Attorney-General;  but  it  was  very  doubtful  whether 
he  would  accept  it.  The  President  said  that  he  should 
have  been  very  desirous  of  having  a  western  gentleman 
in  the  cabinet  but  he  could  not  see  his  way  clear.  He  had 
taken  great  pains  to  inform  himself  but  he  could  not  learn 
that  there  was  any  one  lawyer  in  the  western  country 
suitably  qualified  for  the  office.  He  had  particularly  in- 
quired of  Judge  Todd  who  had  assured  him  there  was  no 
such  suitably  qualified  person.  Graham  said  that  he  had 
inquired  this  morning  of  Mr.  Clay  who  told  him  also  con- 
fidentially the  same  thing  —  that  there  was  no  lawyer  in 
that  country  fit  for  the  office  of  Attorney-General." 

William  Wirt  succeeded  Richard  Rush  as  Attorney- 
General  in  1817,  accepting  the  position  because  it  facilitated 
his  private  practise  in  the  Supreme  Court;  and  held  the 
office  until  1829.^ 

During  this  period,  the  Bar  of  the  United  States  Supreme 
Court  showed  a  marked  change  in  composition;  the  lawyers 
of  Pennsylvania  and  Maryland  no  longer  held  undivided 
sway;  and  the  Bars  of  the  other  States  contributed  many 
eminent  counsel,  especially  after  1825,  when  the  city  of 
Washington  became  easier  of  access,  through  the  advent 
of  steamboats  in  the  West  and  East. 

William  Pinkney  remained  the  undisputed  head  of  the 
Bar,  until  his  death,  in  1822.2    Thereafter,  Daniel  Webster 

1  Prior  to  the  passage  of  the  Act  of  1814  requiring  the  Attorney-General 
to  reside  in  Washington,  such  residence  had  not  been  necessary;  and  Wil- 
liam Pinkney  resigned  the  oiBce  in  1814,  because  of  the  injur>'  to  his  immense 
private  practise  in  Baltimore  which  would  be  caused  by  his  compliance  with 
the  statute. 

2  Wirt  wTote,  May  9,  1822: 

"Poor  Pinkney!  He  died  opportunely  for  his  fame.  It  could  not  have 
risen  higher.  He  was  a  great  man.  On  a  set  occasion,  the  greatest,  I  think, 
at  our  Bar.  I  never  heard  Emmet  nor  Wells,  and  therefore  I  do  not  say 
the  American  Bar.  He  was  an  excellent  lawyer;  had  very  great  force  of 
mind,  great  compass,  nice  discrimination,  strong  and  accurate  judgment; 
and  for  copiousness  and  beauty  of  diction  was  unrivalled.    He  is  a  real 


368  A  HISTORY  OF  THE  AMERICAN  BAR 

overshadowed  all  others  in  the  importance  of  cases  argued, 
and  in  the  mastery  of  the  great  principles  of  constitu- 
tional law;  although  he  had  close  rivals  in  Wirt,  and 
Littleton  Waller  Tazewell,  of  Virginia,  and  in  number  of 
cases  he  was  excelled  by  David  B.  Ogden  of  New  York. 
In  a  letter  of  May  9,  1822,  Wirt  wrote  to  his  brother-in- 
law: 

"Tazewell  and  Webster  have  been  reaping  laurels  in  the 
Supreme  Court,  and  I  have  been  —  sighing.  North  of 
the  Potomac,  I  believe  to  a  man,  they  yield  the  palm  to 
Webster;  South,  to  Tazewell.  So,  you  see,  there  is  section 
in  everything.    Time  will  set  all  these  matters  right." 

The  difficulties  attendant  on  travelling  to  Washington 
in  those  ante-railroad  days  were  reflected  by  the  immense 
number  of  cases  argued  by  eminent  counsel  residing  in  the 
District  of  Columbia.  Probably  from  one-fifth  to  one- 
fourth  of  all  the  cases  appearing  in  the  volumes  of  the 
reporters,  Henry  Wheaton  and  Richard  Peters,  during  this 
period,  were  argued  by  Francis  Scott  Key,  John  Law, 
Thomas  Swann,  Walter  Jones  or  Richard  S.  Coxe  —  all 
local  counsel  residing  in  or  about  Washington.  From 
Massachusetts,  the  chief  counsel  who  argued  before  the 
Court  were  Webster,  George  Blake  and  George  Sullivan; 
from  Rhode  Island,  Ashur  Robbins  and  WiUiam  Hunter; 
none  of  the  other  New  England  States  were  represented  by 
counsel  in  more  than  two  or  three  cases.  From  New  York, 
David  B.  Ogden  ^  appeared  in  a  large  number  of  cases; 
Henry  Wheaton  ^  and  Thomas  Addis  Emmet  were  almost 

loss  to  the  Bar.  No  man  dared  to  grapple  with  him  without  the  most  per- 
fect preparation  and  the  full  possession  of  all  his  strength." 

See  Memoirs  of  WiUiam  Wirt,  by  John  P.  Kennedy,  Vol.  II. 

'  Bom  in  1769. 

2  Born  in  17S5,  a  Brown  graduate  1802,  Reporter  of  United  States 
Supreme  Court  1816-1827. 


THE  FEDERAL  BAR  AND  THE  LAW,   1815-1830     369 

equally  prominent;  and  Ogden  Hoffman/  Samuel  A. 
Foot,2  T.  J.  Oakley ,3  J.  Prescott  Hall '  and  C.  G.  Haines  ^ 
argued  a  few  notable  cases.  From  Pennsylvania,  the 
names  of  John  Sergeant,  Joseph  Hopkinson,^  Joseph  R. 
Ingersoll  ^  and  Charles  J.  IngersolP  were  the  most  promi- 
nent. Of  the  New  Jersey  Bar,  George  Wood  ®  was  the 
leading  representative.  The  lawyers  of  Maryland  naturally 
appeared  in  a  large  number  of  cases  —  William  Pinkney, 
W.  H.  Winder,  R.  G.  Harper,  David  Hoffman  and  (be- 
ginning about  1824-1825)  Roger  B.  Taney;  ^°  Virginia 
sent  L.  W.  Tazewell,"  Edmund  I.  Lee,  Benjamin  Watkins 
Leigh  ^-  and   Philip  N.  Nicholas.^^ 

The  unsettled  condition  of  the  finances,  of  real  estate 
titles,  and  of  the  law  in  general,  in  a  new  frontier  State, 
having  somewhat  crude  courts,  is  shown  in  the  undue  pro- 
portion of  cases  coming  from  Kentucky  and  argued  by 

'  Bom  in  1793,  son  of  Josiah  Ogden  Hoffman,  Columbia  graduate  of 
181 2.  District  Attorney  of  New  York  1829-1835,  for  twenty-five  years 
counsel  in  almost  every  notable  criminal  trial,  1840-1845  United  States 
District  Attorney,  1853-1855  Attorney-General  of  New  York. 

2  Born  in  1790,  Union  College  181 1,  Judge  of  Court  of  Appeals  1851. 

3  Born  in  1783,  Yale  1801,  Attorney-General  1819,  Judge  of  the  Superior 
Court  1828,  Chief  Justice  1846-1857. 

*  Born  in  1796,  Yale  18 17. 

^  Born  in  1793,  Middlebur>'  College  1816. 

'  Born  in  1770,  University  of  Pennsylvania  1786,  admitted  1791. 

'  Born  in  1786,  Princeton  1804. 

^  Born  in  1 782,  Princeton  1 799,  United  States  District  Attorney  1815-1829. 

'  Bom  in  1789,  Princeton  1808,  studied  with  Richard  Stockton,  ad- 
mitted 1812,   in  1837  removed  to  New  York. 

"  Born  in  1777,  Dickinson  College  1795,  studied  with  Judge  Samuel 
Chase,  admitted  1799,  brother-in-law  of  Frances  Scott  Key,  United  States 
Attomey-General  1831-1833,  Chief  Justice  of  United  States  Supreme  Court 
1 S3 7-1 864. 

^^  Born  in  1774,  William  and  iMary  College,  1792,  admitted  1796,  United 
States  Senator  1825-1833. 

^  Bom  in  17S1,  William  and  Mary  College,  1802,  United  States  Senator 
1834-1S37. 
"  Born  in  1773,  .\ttorney-GeneraI  1793,  Judge  of  Court  of  Appeals  1823. 


5 


370  A  HISTORY  OF  THE  AMERICAN  BAR 

Kentucky    lawyers,  —  Henry    Clay,    Benjamin    Hardin,^ 
Charles    A.    Wicklille,    George    M.    Bibb  ^    and    Isham 

Talbot.3 

Of  lawyers  from  other  Southern  and  Western  States  — 
from  Tennessee  came  John  Overton,^  Felix  Grundy," 
John  Catron,^  James  K.  Polk  ^  and  John  H.  Eaton;  ^  from 
Missouri,  Thomas  H.  Benton;  ^  from  Ohio,  Charles  Ham- 
mond i°  and  Thomas  Ewing;"  from  Georgia,  John  Mc- 
Pherson  Berrien;  ^^  fro^i  South  Carolina,  Robert  Y. 
Hayne  ^^  and  Hugh  S.  Legare; "  and  from  North  Caro- 
lina, William  Gaston.^^ 

This  period  was  one  of  tremendous  effect  upon  the  future 
of  American  law,  and  especially  of  that  branch  known  as 

1  Bom  in  1784,  admitted  in  1806. 

2  Bora  in  1772,  Princeton  1792,  United  States  Senator  1811-1814, 1829- 
1835,  Secretary  of  Treasury  1844. 

3  Born  in  1773,  studied  with  George  Nicholas,  the  first  Attorney-General 
of  Kentucky,  United  States  Senator  1815-1819. 

*  Born  in  1766. 

5  Bora  in  1777,  United  States  Senator  1829-1838,  United  States  Attor- 
ney-General 1838-1839. 

6  Bom  in  1778,  Chief  Justice  of  Tennessee  1830-1836,  Judge  of  United 
States  Supreme  Court  1837. 

'  Born  in  1795,  University  of  North  Carolina,  studied  with  Felix  Grundy. 

8  Born  in  1790,  United  States  Senator  1818-1829. 

9  Bora  in  1782,  University  of  North  Carolina,  admitted  in  181 1  under 
patronage  of  Andrew  Jackson,  then  Judge  of  Supreme  Court  of  Tennessee, 
in  1815  went  to  Missouri. 

10  Bom  in  1779,  admitted  1801,  went  from  Maryland  to  Cincinnati  in 
1822,  author  of  Reports  1821-1839. 

11  Born  in  1789,  admitted  in  1816,  United  States  Senator  1831-1837. 

^  Born  in  1781,  Princeton  1796,  Judge  United  States  District  Court 
1810-1821,  United  States  Senator  1825-1829,  1840-1852,  United  States 
Attorney-General  1829-1831. 

13  Born  in  1791,  Attoraey-General  of  South  Carolina  1818-1822,  United 
States  Senator  1823-1832. 

"  Bom  in  1797,  Attorney-General  of  South  Carolina  1830-1832,  United 
States  Attorney-General  1841-1843. 

15  Bom  in  1778,  Princeton  graduate  1796,  Chief  Justice  of  North  Caro- 
lina 1834-1844. 


THE   FEDERAL  BAR  AND  THE  LAW,   1815-1830     371 

constitutional  law  —  the  distinctive  creation  of  the  great 
American  judges  and  lawyers. 

In  1816,  the  vital  question  of  States'  Rights  was  pre- 
sented in  Martin  v.  Hunter's  Lessee  (i  Wheaton,  305),  by 
the  refusal  of  the  Virginia  Court  of  Appeals  to  obey  the 
mandate  of  the  United  States  Supreme  Court,  issued  in 
18 13  (Fairfax  v.  Hunter,  7  Cranch,  603)  on  the  ground 
that  the  appellate  power  of  the  Supreme  Court  did  not 
extend  to  revise  a  decision  of  the  highest  court  of  a  State. 
In  the  State  Court,  the  case  {Hunter  v.  Martin,  4 
Munford,  i)  had  been  argued  amid  great  excitement,  for 
six  days  in  April,  1814,  by  eminent  counsel  —  Wirt  and 
Leigh  against  Williams,  Nicholas  and  Hay  —  and  decision 
was  not  rendered  until  December,  181 5.  In  the  Supreme 
Court,  it  was  argued  by  Walter  Jones  of  Virginia  against 
Samuel  Dexter  of  Massachusetts  and  St.  George  Tucker 
of  Virginia.  The  final  decision  upheld  to  their  fullest  ex- 
tent the  powers  of  the  Supreme  Court.  Judge  Story  in  his 
opinion  showed  his  entire  conversion  to  Marshall's  consti- 
tutional  views,^  stating   that   upon  the  right  decision  of 

^  "Mr.  Justice  Story  was  of  the  democratic  party,  and  shared  the  general 
views  of  that  party  on  questions  of  constitutional  politics;  but  with  a  mind 
of  too  legal  a  cast  to  run  into  wild  revolutionary  extremes.  Coming  upon  the 
bench  with  prepossessions  of  the  character  intimated,  Mr.  Justice  Story 
rose  immediately  above  the  sphere  of  party;  and  with  the  ermine  of  office 
put  on  the  sacred  robe  of  the  Constitution  and  the  law.  Henceforward  it 
became  his  duty,  his  desire,  his  effort,  neither  to  strain  the  Constitution,  nor 
to  travel  round  it,  on  the  loose  popular  maxims  which  guide  the  partisans; 
but  to  interpret  it  with  impartiality  and  administer  it  with  firmness." 

See  review  of  Story's  Commentaries  on  the  Constitution,  by  Edward 
Everett,  in  North  Amer.  Review,  Vol.  XXXVIII  (Jan.  1834). 

The  broad  Federal  powers  in  which  Story  had  come  to  believe  were  stated 
by  him  in  a  letter  to  Henry  Wheaton,  Dec.  13,  1815:  « 

"I  was  much  pleased,  on  reading  in  a  newspaper  this  morning,  that  you 
had  published  an  essay  on  the  necessity  of  a  navigation  act;  most  cordially 
do  I  subscribe  to  your  opinion  on  this  subject.  I  am  truly  rejoiced  that 
there  arc  found  public  spirited  young  men,  who  are  willing  to  devote  their 
time  and  talents  to  the  establishment  of  a  great  national  policy  on  all  sub- 


372  A  HISTORY  OF  THE  AMERICAN  BAR 

the  questions  involved  "  rest  some  of  the  most  solid  princi- 
ples which  have  hitherto  been  supposed  to  sustain  and 
protect  the  Constitution  itself;"  and  he  referred  to  the 
"  difficulty  of  the  task  which  has  so  unwelcomely  fallen 
upon  us  "  and  to  the  "  source  of  consolation  that  we  have 
had  the  assistance  of  most  able  and  learned  arguments  to 
aid  our  inquiries." 

On  December  g,  1818,  Judge  Story  wrote:  "The  next 
term  will  probably  be  the  most  interesting  ever  known;" 
and  this  comment  was  certainly  justified,  for  in  the  year 
18 1 9  the  Court  decided  the  three  great  cases  of  Dartmouth 
College  V.  Woodward,  Sturgis  v.  Crowninshield  and  McCul- 
loch  V.  Maryland. 

The  Dartmouth  College  Case  was  argued  March  10-12, 
1 8 18,  by  Daniel  Webster  of  Massachusetts  and  Joseph 
Hopkinson  of  Pennsylvania,  against  WilHam  Wirt  of 
Maryland  and  John  Hohnes  of  Maine.  It  is  graphically 
depicted  in  the  following  letters  from  Webster.  On  Feb- 
ruary 17,  18 18,  he  wrote  to  William  Sullivan: 

"Brother  [R.  G.]  Amory  and  I  are  all  the  brethren  of 
the  Boston  Bar  here  —  I  forgot  [George]  Blake  —  Ogden 
and  a  Mr.  Baldwin  from  New  York;  Hopkinson,  Sear- 
geant  and  C.  J.  Ingersoll,  Philadelphia;  Harper,  Winder, 
Baltimore;  Wickham,  Leigh  and  Nicholas  from  Virginia; 
Berrien  from  Georgia,  and  the  gentlemen  of  this  District. 
Court  meets  at  eleven,  hears  long  speeches  till  four  and 
adjourns." 

jects.  I  hope  you  will  follow  up  the  blow  by  vindicating  the  necessity  of 
establishing  other  great  national  institutions;  the  extension  of  the  jurisdic- 
tion of  the  Courts  of  the  United  States  over  the  whole  extent  contemplated 
in  the  Constitution;  the  appointment  of  national  notaries,  public  and  national 
justices  of  the  peace;  national  port  wardens  and  pilots  for  all  the  ports  of 
the  United  States;  a  national  bank  and  national  bankrupt  laws.  I  have 
meditated  much  on  all  these  subjects,  and  have  the  details  in  a  considerable 
degree  arranged  in  my  mind." 


THE  FEDERiVL  B.VR  AND   THE  LAW,   iSi 5-1830     373 

On  March  13,  he  wrote  to  President  Brown,  of  Dart- 
mouth College: 

"The  argument  in  the  cause  of  the  College  was  finished 
yesterday.  It  occupied  nearly  three  days.  Mr.  Holmes 
ventured  to  ask  the  Court  whether  it  was  probable  a  de- 
cision would  be  made  at  this  term. 

"The  Chief  Justice  in  answer  said,  that  the  Court  would 
pay  to  the  subject  the  consideration  due  to  an  act  of  the 
legislature  of  a  State  and  a  decision  of  a  State  court,  and 
that  it  was  hardly  probable  a  judgment  would  be  pro- 
nounced at  this  term.  .  .  .  Mr.  Wirt  said  all  that  the  case 
admitted.  He  was  replied  to  in  a  manner  very  gratifying 
and  satisfactory  to  me  by  Mr.  Hopkinson.  Mr.  Hopkin- 
son  understood  every  part  of  our  cause,  and  in  his  argument 
did  it  great  justice.  No  new  view  was  suggested  on  either 
side.  I  am  informed  that  the  Bar  here  are  decidedly  with 
us  in  opinion.  On  the  whole,  we  have  reason  to  keep  up  our 
courage." 

On  the  same  day,  writing  to  Jeremiah  Mason,  he  said : 

"The  case  was  opened  on  our  side  by  me.  Mr.  Holmes 
followed.  .  .  .  Upon  the  whole  he  gave  us  three  hours 
of  the  merest  stuff  that  was  ever  uttered  in  a  country  court. 
Wirt  followed.  He  is  a  good  deal  of  a  lawyer,  and  has  very 
quick  perceptions,  and  handsome  power  of  argument,  but 
he  seemed  to  treat  this  case  as  if  his  side  could  furnish 
nothing  but  declamation.  .  .  .  Mr.  Hopkinson  made  a 
most  satisfactory  reply  keeping  to  the  law,  and  not  follow- 
ing Holmes  and  Wirt  into  the  fields  of  declamation  and 
fine  speaking.  ...  I  may  say  that  nearly  or  quite  all  the 
Bar  are  with  us.  How  the  Court  will  be  I  have  no  means 
of  knowing." 

On  March  23,  18 18,  the  Boston  Daily  Advertiser  pub- 
lished a  long  letter  from  its  Washington  correspondent, 
dated  March  14,  thus  describing  the  argument: 

"Mr.  Webster  opened  the  cause  in  that  clear,  perspicu- 
ous, forcible  and  impressive  manner  for  which  he  is  so 


374  A  HISTORY  OF  THE  AMERICAN  BAR 

much  distinguished;  and  for  two  or  three  hours  enchained 
the  Court  and  the  audience  with  an  argument  which,  for 
weight  of  authority,  force  of  reasoning,  and  power  of 
eloquence,  has  seldom  been  equalled  in  this  or  any  court. 
Mr.  Holmes  opened  the  cause  on  the  part  of  the  University, 
and  was  followed  by  the  Attorney- General,  Mr.  Wirt,  in 
a  very  able  and  eloquent  argument  on  the  same  side.  Mr. 
Wirt's  style  is  splendid,  his  manner  vehement,  and  his 
action  attended  with  much  effort.  Before  he  concluded 
he  became  so  exhausted  by  his  great  efforts  of  voice  and 
action,  that  he  was  obliged  to  request  the  Court  to  indulge 
him  until  the  next  day,  expressing  at  the  same  time  'that 
he  had  not  of  the  exam.ple  of  extreme  coolness  which  had 
been  set  by  the  counsel  associated  with  him.'  Mr.  Hop- 
kinson  closed  the  cause  for  the  College  with  great  ability, 
and  in  a  manner  which  gave  perfect  satisfaction  and  de- 
light to  all  who  heard  him.  The  cause  stands  continued 
for  advisement.  ...  In  the  meantime,  there  is  no  reason, 
I  apprehend,  for  the  friends  of  the  College  to  be  disheart- 
ened or  to  relax  in  their  efforts." 

Of  Webster's  great  argument,  many  accounts  have  been 
given,  but  none  more  vivid  than  that  of  Rufus  Choate  in 
his  eulogy  in  1852  befope  the  Bar  of  the  United  States  Cir- 
cuit Court,  in  Boston: 

"Some  scenes  there  are  —  some  Alpine  eminences  ris- 
ing above  the  high  tableland  of  such  a  professional  life,  to 
which,  in  the  briefest  tribute  we  should  love  to  follow  him. 
We  recall  that  day,  for  instance,  when  he  first  announced, 
with  decisive  display,  what  manner  of  man  he  was,  to  the 
Supreme  Court  of  the  Nation.  It  was  in  1818,  and  it  was  in 
the  argument  of  the  case  of  Dartmouth  College.  William 
Pinkney  was  recruiting  his  great  faculties  and  replenishing 
that  reservoir  of  professional  and  elegant  acquisition  in 
Europe.  Samuel  Dexter,  'the  honorable  man  and  counsel- 
lor and  the  eloquent  orator,'  was  in  his  grave.  The  bound- 
less old  school  learning  of  Luther  Martin;  the  silver  voice 
and  infinite  analytical  ingenuity  and  resource  of  Jones; 
the  fervid  genius  of  Emmet,  pouring  itself  along  immenso 


THE  FEDERAL  BAR  AND   THE  LAW,   1815-1830     373 

ore;  the  ripe  and  beautiful  culture  of  Wirt  and  Hopkin- 
son  —  the  steel  point  unseen,  not  unfclt,  beneath  the  foliage; 
Harper  himself,  statesman  as  well  as  lawyer  —  these  and 
such  as  these  were  left  of  that  noble  Bar. 

''That  day,  Mr.  Webster  opened  the  cause  of  Dartmouth 
College  to  a  tribunal  unsurpassed  on  earth  in  all  that  gives 
illustration  to  a  bench  of  law. 

"One  would  love  to  linger  on  the  scene  —  when,  after  a 
masterly  argument  of  the  law,  carrying,  as  we  may  now 
know,  conviction  to  the  general  mind  of  the  Court,  and 
vindicating  and  settling  for  his  life-time  his  place  in  that 
forum,  he  paused  to  enter,  with  an  altered  feeling,  tone 
and  manner,  with  these  words  on  his  peroration  —  '  I 
have  conducted  my  alma  mater  to  this  presence,  that  if 
she  must  fall,  she  may  fall  in  her  robes,  and  with  dignity,' 
and  he  broke  forth  in  that  strain  of  sublime  and  pathetic 
eloquence,  of  which  we  know  not  much  more  than  that, 
in  its  progress,  Marshall  the  intellectual  —  the  self-con- 
trolled —  the  unemotional,  announced  visibly  the  presence 
of  the  unaccustomed  enchantment." 

The  Judges  being  greatly  divided  in  opinion,  no  decision 
was  rendered  at  this  term;  and  the  defendants  decided  to 
retain  William  Pinkney  and  to  ask  for  a  re-argument. 
Hopkinson  wrote  to  Webster,  November  17,  1818: 

"In  my  passage  through  Baltimore  I  fell  in  with  Pink- 
ney who  told  me  he  was  engaged  in  the  cause  by  the  present 
University,  and  that  he  is  desirous  to  argue  it  if  the  Court 
will  let  him.  I  suppose  he  expects  to  do  something  very 
extraordinary  in  it,  as  he  says  Mr.  Wirt  'was  not  strong 
enough  for  it,  has  not  back  enough.'  There  is  a  wonderful 
degree  of  harmony  and  mutual  respect  among  our  opponents 
in  this  case.  You  may  remember  how  Wirt  and  Holmes 
thought  and  spoke  of  each  other.  ...  I  think  if  the  Court 
consents  to  hear  Mr.  Pinkney  it  will  be  a  great  stretch  of 
complaisance,  and  that  we  should  not  give  our  consent  to 
any  such  proceedings." 

No  re-argument,  however,  took  place,  and  the  decision 
of  the  Supreme  Court  was  rendered  on  the  second  day 


376  A  HISTORY  OF  THE  AMERICAN  BAR 

of  the  term,  February  2,  1819.  During  the  argument, 
the  Court  had  held  its  session  in  ''a  mean  apartment  of 
moderate  size,"  the  Capitol  not  having  been  rebuilt  after 
its  destruction  by  the  British  troops  in  1814.^  In  1819, 
however,  the  Court  met  for  the  first  time  "in  the  splendid 
room  provided  for  it  in  the  Capitol,"  as  Niles^  Register 
states.^  This  room  was  a  basement  chamber,  approached 
by  a  small  hall,  having  an  eastern  door  of  entrance  from 
the  grounds  of  the  Capitol.^ 
Of  the  decision,  Hopkinson  wrote  Brown  on  the  same  day: 

"Our  triumph  in  the  College  cause  has  been  complete. 
Five  judges,  only  six  attending,  concur  not  only  in  a  deci- 
sion in  our  favor;  but  in  placing  it  upon  principles  broad 
and  deep,  and  which  secure  corporations  of  this  description 
from  legislative  despotism  and  party  violence  for  the 
future.  The  Court  goes  all  lengths  with  us,  and  whatever 
trouble  these  gentlemen  may  give  us  in  the  future,  in  their 
great  and  pious  zeal  for  the  interests  of  learning,  they 
cannot  shake  those  principles  which  must  and  will  restore 
Dartmouth  College  to  its  true  and  original  owners.  I 
would  have  an  inscription  over  the  door  of  your  building, 
'Founded  by  Eleazar  Wheelock;  Refounded  by  Daniel 
Webster.'" 

In  view  of  its  immense  effect  upon  the  future  jurispru- 
dence and  corporate  growth  in  this  country,  it  is  interest- 

1  See  description  of  Professor  Chauncy  A.  Goodrich  quoted  in  Curtis' 
Life  oj  Websler,  Vol.  I. 

2  Niles^  Register,  Feb.  20,  1819. 

^  See  National  Intelligencer,  Feb.  2,  1819:  "We  are  highly  pleased  to  find 
that  the  Court  room  in  the  Capitol  is  in  a  state  fit  for  the  reception  of  the 
Supreme  Court.  We  shall  not  pretend  to  describe  in  the  terms  of  art  the 
structure  and  decoration  of  this  apartment,  though  we  will  endeavor  to 
prevail  on  some  qualified  person  to  do  it  for  us.  It  is  such  as  to  have  an  effect 
on  the  beholder,  considerably  more  agreeable  than  that  which  was  produced 
on  entering  the  same  apartment  previous  to  the  remodification  of  it  made 
necessary  by  the  conflagration  of  the  interior  of  the  Capitol."  See  also 
History  of  the  United  Stales  Supreme  Court,  by  Hampton  L.  Carson. 


THE  FEDERAL  BAR  AND  THE  LAW,   i8i 5-1830     377 

ing  to  note  that  the  importance  of  the  case  was  little 
realized  in  the  public  press  of  the  time.  Niks'  Register^ 
the  weekly  periodical  published  at  Baltimore,  which  gave 
a  fairly  complete  summary  of  all  political  and  legal  occur- 
rences, makes  no  mention  of  the  decision.  The  New  York 
newspapers  contained  very  slight  mention  of  the  case,  the 
Evening  Post  devoting  only  a  few  Hnes,  February  5,  and 
saying:  "Judge  Marshall  delivered  the  opinion.  It  is 
pronounced  by  our  correspondent  as  a  most  able  and  elabo- 
rate production."  Even  the  Boston  papers  were  scant  in 
their  accounts. 

Nevertheless,  within  a  year  after  the  decision,  the  North 
American  Review  stated,  in  January,  1820:  "Perhaps  no 
judicial  proceeding  in  this  country  ever  involved  more 
important  consequences  or  excited  a  deeper  interest  in 
the  public  mind  than  the  case  of  Dartmouth  College." 

Two  weeks  after  the  Dartmouth  College  decision,  the 
Supreme  Court  decided  the  great  case  of  Sturgis  v.  Crown- 
inshield  (4  Wheaton,  122),  declaring  the  Insolvency  Act 
of  New  York  unconstitutional,  though  leaving  unsettled 
the  general  power  of  the  States  to  pass  bankrupt  laws,  if 
confined  to  contracts  made  after  the  passage  of  the  act. 
In  view  of  the  depressed  condition  of  business  affairs  in 
the  country,  this  decision  was  of  immense  importance. 

The  argument  of  the  case,,  which  occurred  on  February 
8  and  9,  1819,  was  thus  described  in  a  letter  written  at  the 
time :  ^ 

"The  cause  was  very  ably  argued  on  both  sides,  and 
certainly  there  never  was  a  question  discussed  in  a  court 
of  justice  where  the  court  had  the  benefit  of  more 
instructive  pleadings  (evidently  the  result  of  laborious 
investigation) . 

"It  was  opened  in  a  clear  and  perspicuous  manner  by 

*  See  New  York  Evening  Post,  Februarj',  1819. 


378  A  HISTORY  OF  THE  AMERICAN  BAR 

Mr.  David  Daggett  from  Connecticut  against  the  State 
laws.  He  was  followed  on  the  other  side  by  Mr,  William 
Hunter  of  Rhode  Island  in  a  very  learned  view  of  the  his- 
tory of  bankrupt  laws  and  a  subtle  examination  of  the 
import  of  the  terms  in  the  Constitution  'impairing  the 
obligation  of  contracts,'  on  which  the  discussion  mainly 
hinged.  Mr.  David  B.  Ogden  of  New  York  followed  on 
the  same  side  with  a  critical  analysis.  ...  He  manifested 
strong  logical  powers  and  great  learning  in  the  investigation 
of  the  subject;  and  if  any  abilities  could  have  saved  the 
cause,  I  am  sure  it  would  have  been  saved.  Mr.  (Joseph) 
Hopkinson  of  Philadelphia  closed  the  argument  with 
his  usual  acumen  and  ingenuity.  The  decision  ...  is 
no  doubt  to  be  lamented  in  regard  to  the  temporary  evils 
it  must  inflict. 

"But  certainly  every  intelligent  and  reflecting  man 
must  have  anticipated  the  possibility  of  such  a  decision 
being  ultimately  pronounced  by  the  highest  tribunal  of 
the  country;  and  I  know  many  of  the  best  lawyers  in  it 
have  confidently  expected  this  would  be  the  result." 

The  news  of  this  decision  on  February  17  caused  a 
great  perturbation  throughout  the  country;  for  it  was  at 
first  supposed  that  the  Court  had  decided  that  the  States 
had  no  constitutional  power  to  pass  any  bankrupt  or  in- 
solvent laws  whatsoever. 

The  New  York  Evening  Post  of  February  23  said:  "It 
causes  a  very  considerable  sensation  in  the  city  and  we  do 
not  wonder  at  it." 

The  necessity  for  a  national  bankruptcy  act  seemed  im- 
peratively manifest.  Niks'  Register  of  February  27,  in  a 
long  editorial  upon  the  case,  said: 

"This  opinion  has  given  much  alarm  to  many  persons, 
it  is  highly  interesting  to  every  one.  It  will  probably 
make  some  great  revolutions  in  property  and  raise  up 
many  from  penury  whose  '  eyes  have  been  blinded  by 
the  dirt  of  the  coach  wheels  of  those  who  ruined  them  ' 
and  cause  others  to  descend  to  the  condition  that  becomes 


THE  FEDERAL  BAR  AND  THE  LAW,   1815-1830    379 

honest  men  by  compelling  a  payment  of  their  debts.  .  .  . 
The  decision  powerfully  shows  the  necessity  of  a  general 
bankrupt  law,  and  if  it  had  taken  place  at  an  earlier  period 
of  the  session  of  Congress,  might  have  led  to  the  passage 
of  a  bill  on  that  subject,  for  it  is  exceedingly  important 
whilst  the  present  system  of  credits  exists  that  either  party 
to  it  may  know  what  may  be  depended  upon.  The  decision 
will  afford  a  golden  har\^est  to  lawyers  and  sheriffs,  we 
have  heard  of  one  gentleman  who  has  ordered  writs  for 
the  recovery  of  eighty  thousand  dollars  due  to  him  by 
persons  that  failed,  but  who  are  now  able  to  pay." 

Further  study  of  the  opinion  made  it  clear,  however, 
that  it  only  affected  statutes  discharging  debts  incurred 
prior  to  the  passage  of  the  statute.  The  main  question 
as  to  the  general  power  of  the  States  to  pass  bankruptcy 
laws  was  left  undecided,  and  caused  much  business  uncer- 
tainty for  many  years. 

Within  a  few  days  after  the  decision  of  Sturgis  v.  Crown- 
insJiield  the  great  case  of  McCulloch  v.  Maryland,  involv- 
ing the  right  of  the  State  to  tax  the  new  Bank  of  the  United 
States,  was  argued  by  William  Pinkney,  William  Wirt 
and  Daniel  Webster  for  the  Bank,  and  Luther  ISIartin, 
Joseph  Hopkinson  and  Walter  Jones  for  the  State  of  Mary- 
land. The  arguments  began  February  22,  18 19,  and  lasted 
nine  days.  No  such  constellation  of  lawyers  had  ever  ap- 
peared before  the  Court  in  a  single  case. 

On  February  25,  18 19,  the  National  Intelligencer,  a  news- 
paper published  in  Washington,  said : 

"The  argument  has  involved  some  of  the  most  important 
principles  of  constitutional  law  which  have  been  discussed 
with  an  equal  degree  of  learning  and  eloquence  and  have 
constantly  attracted  the  attention  of  a  numerous  and 
intelhgent  auditor  by  whom  the  final  decision  of  this  most 
important  question  from  the  Supreme  Tribunal  is  anx- 
iously expected." 


38o  A  HISTORY  OF  THE  AMERICAN  BAR 

Of  Pinkney's  three  days'  speech,  Judge  Story  wrote, 
March  3,  1819: 

"]\Ir.  Pinkney  rose  on  Monday  to  conclude  the  argument; 
he  spoke  all  that  day  and  yesterday,  and  will  probably 
conclude  today.  I  never,  in  my  whole  life,  heard  a  greater 
speech;  it  was  worth  a  journey  from  Salem  to  hear  it; 
his  elocution  was  excessively  vehement,  but  his  eloquence 
was  overwhelming.  His  language,  his  style,  his  figures, 
his  arguments,  were  most  brilliant  and  sparkhng.  He 
spoke  like  a  great  statesman  and  patriot,  and  a  sound 
constitutional  lawyer.  All  the  cobwebs  of  sophistry  and 
metaphysics  about  State  rights  and  State  sovereignty  he 
brushed  away  with  a  mighty  besom.  We  have  had  a 
crowded  audience  of  ladies  and  gentlemen;  the  hall  was 
full  ahnost  to  suffocation,  and  many  went  away  for  want 
of  room." 

On  March  6,  1819,  only  three  days  after  the  close  of 
Pinkney's  argument,  Chief  Justice  Marshall  rendered  his 
renowned  opinion,  upholding  to  their  fullest  extent  the 
rights  of  the  National  Government  to  charter  the  Bank 
as  a  Federal  agency  and  to  the  exclusive  control  of  such 
Federal  agency,  and  holding  the  attempt  on  the  part  of  the 
State  of  Maryland  to  tax  it  an  interference  with  the  Federal 
rights  under  the  Federal  Constitution  (4  Wheaton,  316). 

As  soon  as  the  decision  was  made  known,  the  country 
at  once  was  divided  upon  pohtical  lines  in  regard  to  it. 

Judge  Story  wrote  on  Sunday,  March  7: 

"It  excites  great  interest,  and  in  a  political  view  is  of 
the  deepest  consequence  to  the  nation.  It  goes  to  estab- 
hsh  the  Constitution  upon  its  great  original  principle." 

The  National  Intelligencer  of  March  13  said:  "The  Su- 
preme Judicial  authority  of  the  nation  has  rarely,  if  ever, 
pronounced  an  opinion  more  interesting  in  its  views  or 
more  important  in  its  operation."    The  newspapers  of  the 


THE  FEDERi\L  BAR  AND  THE  LAW,   1815-1830    381 

Eastern  and  Northern  States  almost  unanimously  praised 
the  decision. 

On  the  other  hand,  the  papers  of  the  States  upholding 
the  theories  of  Jefferson  and  the  strict  States'  Rights 
doctrines  bitterly  assailed  it.  Niles'  Register  of  IMarch 
13  said: 

'*  A  deadly  blow  has  been  struck  at  the  Sovereignty  of 
the  States,  and  from  a  quarter  so  far  removed  from  the 
people  as  to  be  hardly  accessible  to  public  opinion.  .  .  . 
We  are  awfully  impressed  with  a  conviction  that  the  welfare 
of  the  Union  has  received  a  more  dangerous  wound  than 
fifty  Hartford  Conventions,  hateful  as  that  assemblage  was, 
could  inflict  .  .  .  and  which  may  be  wielded  to  destroy 
the  whole  revenues  and  so  do  away  with  the  Sovereignties 
of  the  States." 

The  Richmond  Enquirer  said:  "If  such  a  spirit  as  breathes 
on  this  opinion  is  forever  to  preside  over  the  judiciary, 
then  indeed  it  is  high  time  for  the  State  to  tremble;  that 
all  their  great  rights  may  be  swept  away  one  by  one,  that 
those  sovereign  States  may  dwindle  into  paltry  and  con- 
temptible corporations." 

Chief  Justice  Marshall  wrote  to  Judge  Story,  May  27, 

1819:^ 

"This  opinion  in  the  Bank  case  continues  to  be  de- 
nounced by  the  democracy  in  Virginia.  An  effort  is  cer- 
tainly making  to  induce  the  Legislature  which  will  meet 
in  December,  to  take  up  the  subject  and  to  pass  resolutions 
very  like  those  which  were  called  forth  by  the  alien  and 
sedition  laws  in  1799.  ...  If  the  principles  which  have 
been  advanced  on  this  occasion  were  to  prevail,  the  con- 
stitution would  be  converted  into  the  old  Confederation." 

In  this  year,  1819,  the  United  States  Circuit  Courts  were 
busy  with  a  branch  of  law  which  has  now  become  ahnost 

1  Mass.  Hist.  Soc.  Proc,  2d  series,  Vol.  XIV. 


382  A  HISTORY  OF  THE  AMERICAN  BAR 

extinct  —  the  law  of  piracy,  incidentally  involving  illegal 
slave  trade.  For  several  years,  the  Government  had  been 
much  embarrassed  in  its  deahngs  with  foreign  nations,  by 
the  crowd  of  piratical  privateers  which  sailed,  largely  from 
Southern  ports  of  the  United  States,  under  flags  of  the 
infant,  mushroom-like  South  American  Repubhcs.  France 
and  Spain  had  protested  violently.  Finally  John  Quincy 
Adams,  as  Secretary  of  State,  adopted  a  vigorous  pohcy, 
and  prevailed  on  Wilham  Wirt,  as  Attorney- General,  to 
prosecute  the  pirates.  At  first,  the  courts  were  incHned  to 
rule  the  law  in  favor  of  the  pirates.  The  following  ex- 
tracts from  Adams'  Diary  are  illuminating  on  the  situa- 
tion (allowing  for  his  well-known  bitter  personal  prejudices) : 

"May  26,  1817:  I  spoke  to  Wirt  about  the  acquittal  at 
Baltimore  of  the  pirate  Daniels.  The  case  went  off  upon  a 
legal  quibble.  Wirt  says  it  is  because  the  Judges  are  too 
weak  but  very  good  old  men  who  suffer  themselves  to  be 
bullied  and  browbeaten  by  Pinkney.^ 

"August  21,  1817:  Pinkney  is  the  standing  counsel  for 
all  pirates  who,  by  browbeating  and  domineering  over 
the  courts  and  by  paltry  pettifogging  law-quibbles,  has 

^  See  Diary  of  John  Quincy  Adams,  Vol.  IV,  in  which  Adams  continued 
with  his  extraordinary  reflections  on  law  as  follows: 

"I  told  him  that  I  thought  it  was  law  logic  —  an  artificial  system  of  rea- 
soning exclusively  used  in  courts  of  justice,  but  good  for  nothing  anywhere 
else.  .  .  .  The  source  of  all  this  pettifogging  is,  that  out  of  judicial  courts 
the  end  of  human  reasoning  is  truth  or  justice,  but  in  them  it  is  law.  'Ita 
lex  scripta  est,'  and  there  is  no  reply.  Hence  it  is  my  firm  belief  that,  if 
instead  of  the  long  robes  of  judges  and  the  long  speeches  of  lawyers,  the 
suitors  of  every  question  debated  in  the  courts  between  individuals  were  led 
blindfolded  up  to  a  lottery  wheel  and  there  bidden  to  draw,  each  of  them 
one  or  two  tickets,  one  marked  Right  and  the  other  Wrong,  and  execution 
should  issue  according  to  the  sentence  of  the  whole,  more  substantial  justice 
would  be  done  than  is  now  dispensed  by  courts  of  law.  In  criminal  cases, 
by  the  humanity  of  the  law,  which  is  indeed  its  best  and  most  amiable 
feature,  the  chances  in  favor  of  the  culprit  are  multiplied;  and  when  the 
subtilty  and  the  passions  of  the  judges  combine  in  their  favor,  no  criminal 
can  be  brought  to  justice  and  punishment." 


THE  FEDERAL  BAR  AND  THE  LAW,   i8i 5-1830     383 

saved  all  their  necks  from  the  richly  merited  halter.  .  .  . 
Baltimore  upon  privateering  and  banking  is  rotten  to  the 

heart. 

"March  29,  18 19:  The  misfortune  is  not  only  that  this 
abomination  has  spread  over  a  large  portion  of  the  mer- 
chants and  of  the  population  of  Baltimore,  but  that  it 
has  infected  almost  every  officer  of  the  United  States  in 
the  place.  .  .  .  The  District  Judge  Houston  and  the 
Circuit  Judge  Duval  are  both  feeble,  inefficient  men,  over 
whom  William  Pinkney,  employed  by  all  the  pirates  as 
their  counsel,  domineers  like  a  slave  driver  over  his 
negroes," 

Finally,  however,  the  conviction  and  sentence  to  death 
of  about  fifty  persons  were  secured  at  Boston,  Baltimore 
and  Richmond.^ 

The  law  was  settled  in  a  series  of  nine  piracy  cases,  de- 
cided in  the  United  States  Supreme  Court  by  Judge  Story 
{U.  S.  V.  Klintock  and  U.  S.  v.  Smith,  5  Wheaton),  in 
1820,  against  the  strong  arguments  urged  in  behalf  of  the 
pirates  by  Daniel  Webster,  and  by  W.  H.  Winder  of 
Maryland. 

In  182 1,  the  great  question  of  State  Sovereignty  was 
again  the  important  subject  before  the  Court;  and  on 
March  3-5  Marshall  rendered  his  opinion  in  Cohens  v. 
Virginia  (6  Wheaton,  264),  reaffirming  the  supreme  power 
of  the  Court  to  review  decisions  of  the  State  courts 
in  criminal  as  well  as  civil  proceedings.  Philip  P.  Bar- 
bour 2  and  Alexander  Smythe  ^  appeared  for  the  State  of 
Virginia,  and  William  Pinkney  and  David  B.  Ogden  for 
the  plaintiff. 

The  decision  caused  much  excitement  in  the  newspapers 

*  See  Diary  of  John  Quincy  Adams,  Vol.  IV. 

*  Born  in  1783,  William  and  ^lary  College,  ofifered  Professorship  of  Law 
in  University  of  Virginia  in  1825,  United  States  District  Judge  1S30,  United 
States  Supreme  Court  1836. 

'  Born  in  1765. 


3S4  A  HISTORY  OF  THE  AMERICAN  BAR 

of  the  country,  and  was  bitterly  attacked  by  the  upholders 
of  States'  Rights  in  letters  and  speeches. 
Niles'  Register  said,  March  17,  182 1: 

"The  decision  was  exactly  such  as  expected  for  we  pre- 
sumed that  that  high  tribunal  would  act  consistently  — 
and  on  the  termination  of  the  case  about  the  bank  of  the 
United  States,  McCulloch  v.  Maryland,  we  had  no  manner 
of  doubt  as  to  the  result  .  .  .  and  that  the  State  Sover- 
eignty would  be  taught  to  bow  to  the  judiciary  of  the 
United  States.  So  we  go.  It  seems  as  if  almost  everything 
that  occurs  had  for  its  tendency  that  which  every  reflect- 
ing man  deprecates." 

On  July  7,  182 1,  Niks'  Register  said: 

"The  decision  .  .  .  still  claims  the  attention  of  some  of 
our  ablest  writers,  and  the  correctness  of  it  is  contested 
with  a  fine  display  of  talents  and  profound  reasoning  by 
'Algernon  Sidney'  in  the  Richmond  Enquirer  and  'Hamp- 
den '  in  the  Washington  City  Gazette  —  to  which  we  refer 
those  who  are  not  already  satisfied  on  the  subject.  For 
o;  fselves,  though  not  exactly  prepared  to  submit,  it  seenas 
as  if  it  were  required  that  all  who  do  not  subscribe  to  their 
belief  in  the  infallibility  of  that  court  are  m  danger  of 
poHtical  excommunication." 

Of  the  criticism  on  the  case,  Marshall  wrote  to  Story, 

June  15,  1821:^ 

"The  opinion  of  the  Supreme  Court  in  the  lottery  case 
has  been  assailed  with  a  degree  of  virulence  transcending 
what  has  appeared  on  former  occasions  ...  I  think  for 
coarseness  and  malignity  of  invention  Algernon  Sidney 
[Spencer  Roane,  Judge  of  the  Virginia  Court  of  Errors  and 
Appeals]  surpasses  all  party  writers  who  have  ever  made 
pretensions  to  any  decency  of  character." 

Jefferson's  views  of  the  opinion  were  vigorously  ex- 
pressed by  him  two  years  later  in  a  letter  to  Judge  William 
Johnson,  June  12,  1823: 

1  See  Mass.  Ilist.  Soc.  Proc,  2d  Series,  Vol.  XIV  (1900-1901). 


THE  FEDER.\L  BAR  AND   THE  LAW,   1815-1830     385 

"On  the  decision  of  Cohens  v.  State  of  Virginia  in  the 
Supreme  Court  of  the  United  States  in  March,  182 1, 
Judge  Roane  (presiding  judge  of  the  Court  of  Appeals  of 
Virginia)  under  the  signature  of  Algernon  Sidney  wrote  for 
the  Enquirer  a  series  of  papers  on  the  law  of  that  case. 
I  considered  these  papers  maturely  as  they  came  out,  and 
confess  that  they  appeared  to  me  to  pulverize  every 
word  that  had  been  delivered  by  Judge  Alarshall  of  the 
extra-judicial  part  of  his  opinion,  and  all  was  extra-judicial, 
except  the  decision  that  the  act  of  Congress  had  not  pur- 
ported to  give  to  the  corporation  of  Washington  the  au- 
thority claimed  by  their  lottery  of  controlling  the  laws  of 
the  States  within  the  States  themselves. 

"The  practice  of  Judge  IMarshall  of  travelhng  out  of  his 
case  to  prescribe  what  the  law  would  be  in  a  moot  case 
not  before  the  court  is  very  irregular  and  very  censurable." 

The  most  alarming  effect  of  the  opposition  to  the  strong 
centralizing  tendency  of  the  Supreme  Court  opinions  was 
the  steady  increase  of  propositions  to  limit  the  powers  of 
that  Court  by  legislation  or  constitutional  amendment. 
Those  who  favored  such  measures  pointed  to  the  fact  that 
between  1809  and  1822  the  Court  had  exercised  its  power 
to  declare  unconstitutional,  in  whole  or  in  part,  nine  statutes 
in  eight  States  (Georgia,  New  Jersey,  Virginia,  New  Hamp- 
shire, New  York,  Maryland,  Louisiana  and  Pennsylvania). 

Jefferson  wrote,  January  19,  182 1: 

"I  am  sensible  of  the  inroads  daily  making  by  the  Federal 
into  the  jurisdiction  of  its  co-ordinate  associates,  the  State 
governments.  Its  legislative  and  executive  branches  may 
sometimes  err,  but  elections  and  dependence  wiW.  bring 
them  to  rights.  The  judiciary  branch  is  the  instrument 
which,  working  like  gravity,  without  intermission,  is  to 
press  us  at  last  into  one  consolidated  mass." 

On  September  2,  1821,  he  wrote: 

"To  consider  the  judges  as  the  ultimate  arbiters  of  all 
constitutional  questions,  is  very  dangerous  doctrine  indeed 


386  A  HISTORY  OF  THE  AMERICAN  BAR 

and  one  which  would  place  us  under  the  despotism  of  an 
oHgarchy.  Our  judges  are  as  honest  as  other  men,  and 
not  more  so.  They  have,  with  others,  the  same  passions 
for  party,  for  power,  and  the  pri\'ilege  of  their  corps.  Their 
maxim  is  'boni  jiidices  est  amplificare  jurisdictionem,'  and 
their  power  the  more  dangerous,  as  they  are  in  office 
for  Hfe  and  not  responsible  as  the  other  functionaries  are 
to  the  elective  control.  The  Constitution  has  erected  no 
such  single  tribunal,  knowing  that  to  whatever  hands 
confided,  \\ith  the  corruptions  of  time  and  party,  its  mem- 
bers would  become  despots." 

And  again,  on  March  4,  1823,  he  wrote: 

"There  is  no  danger  I  apprehend  so  much  as  the  con- 
soHdation  of  our  government,  by  the  noiseless  and  therefore 
unalarming  instrumentality  of  the  Supreme  Court."  ^ 

Already  in  1807-1808,  soon  after  the  Burr  trial,  attempts 
had  been  made  in  each  branch  of  Congress  to  amend  the 
Constitution  so  that  all  judges  should  hold  ofi&ce  for  a 
term  of  years  and  be  removable  by  the  President  on  ad- 
dress by  two-thirds  of  both  Houses.  This  proposition  was 
supported  by  resolves  of  the  Legislatures  of  Pennsylvania 

1  On  December  25,  1820,  Jefferson  had  written  to  Thomas  Ritchie: 

"The  judiciary  of  the  United  States  is  the  subtle  corps  of  sappers  and 
miners  constantly  working  underground  to  undermine  the  foundations  of 
our  confederated  fabric.  They  are  construing  our  Constitution  from  a  co- 
ordination of  a  general  and  special  government  to  a  general  and  supreme 
one  alone.  .  .  .  Having  found  from  experience  that  impeachment  is  an 
impracticable  thing,  a  mere  scare-crow,  they  consider  themselves  secure 
for  life;  they  skulk  from  responsibility  to  public  opinion,  the  only  remaining 
hold  on  them,  under  a  practice  first  introduced  into  England  by  Lord  Mans- 
field. An  opinion  is  huddled  up  in  conclave,  perhaps  by  a  majority  of  one, 
delivered  as  if  unanimous,  and  with  the  silent  acquiescence  of  lazy  or  timid 
associates,  by  a  crafty  chief  judge  who  sophisticates  the  law  to  his  mind  by 
the  turn  of  his  own  reasoning. 

A  judiciary  independent  of  a  king  or  executive  alone  is  a  good  thing; 
but  independence  of  the  will  of  the  nation  is  a  solecism,  at  least  in  a 
republican  government." 

See  Writings  of  Thomas  JeJJerson,  Vol.  X,  pp.  169,  184,  197,  246. 


THE  FEDERAL  BAR  AND  THE  LAW,  1815-1830    387 

and  Vermont,  as  well  as  by  action  of  the  House  of  Dele- 
gates in  Virginia  and  one  branch  of  the  Legislature  in 
Tennessee. 

After  the  decision  in  the  Cohens  case,  a  Virginia  member 
of  Congress,  in  April,  1S22,  introduced  a  bill  to  repeal 
so  much  of  the  Judiciary  Act  as  gave  the  Supreme 
Court  power  to  revise  final  decisions  of  State  courts;  and 
a  member  from  Kentucky  proposed  a  Constitutional 
amendment  giving  appellate  jurisdiction  to  the  Senate  in 
any  case  in  which  a  State  was  a  party.  In  December, 
1823,  Senator  Johnson  of  Kentucky  introduced  a  bill  to 
change  the  Judiciary  Act  so  as  to  require  that  no  State 
law  should  be  declared  unconstitutional  by  the  Court 
unless  seven  judges  concurred;  and  in  March,  1824, 
Senator  Martin  Van  Buren  from  the  Committee  reported 
a  bill.  Representative  Wickliffe,  in  January,  1824,  offered 
a  bill  to  repeal  the  entire  twenty-fifth  section  of  the  Judi- 
ciary Act.  The  bills  failed  to  pass,  and  another  effort  in 
1825  met  a  similar  fate.^ 

Of  such  attacks,  Judge  Story  wrote  to  Jeremiah  Mason, 
January  10,  1822: 

"I  am  glad  you  write  somewhat  encouragingly  respecting 
the  Judiciary.  My  only  hope  is  in  the  discordant  views 
of  the  various  interested  factions  and  philosophists.  Mr. 
Jefferson  stands  at  the  head  of  the  enemies  of  the  Judiciary, 
and  I  doubt  not  will  leave  behind  him  a  numerous  progeny 
bred  in  the  same  school.  The  truth  is  and  cannot  be  dis- 
guised, even  from  vulgar  observation,  that  the  Judiciary 
in  our  country  is  essentially  feeble,  and  must  always  be 
open  to  attack  from  all  quarters.  It  will  perj^etually  thwart 
the  wishes  and  views  of  demagogues,  and  it  can  have  no 
places  to  give  and  no  patronage  to  draw  around  it  close 

'  See  Senate  Journal,  Dec.  10,  1823,  pp.  40,  41;  March  11,  1824,  pp.  229, 
232.  See  also  Annals  of  Congress,  1823-1824,  pp.  915,  916-921;  Annals  of 
Congress,  1824-1825,  Jan.  25,  pp.  365,  370. 


388  A  HISTORY  OF  THE  AMERICAN  BAR 

defenders.  Its  only  support  is  the  wise  and  the  good  and 
the  elevated  in  society;  and  these,  as  we  all  know,  must 
ever  remain  in  a  discouraging  minority  in  all  Governments. 
If,  indeed,  the  Judiciary  is  to  be  destroyed,  I  should  be  glad 
to  have  the  decisive  blow  now  struck,  while  I  am  young,  and 
can  return  to  the  profession  and  earn  an  honest  hvehhood. 
If  it  comes  in  my  old  age,  it  may  find  me  less  able  to  bear 
the  blow,  though  I  hope  not  less  firm  to  meet  it.  For  the 
Judges  of  the  Supreme  Court  there  is  but  one  course  to 
pursue.  That  is,  to  do  their  duty  firmly  and  honestly, 
according  to  their  best  judgments." 

The  spirit  of  the  times  with  reference  to  the  States' 
Rights  issue  in  the  courts  is  interestingly  shown  in  a  letter 
from  Marshall  to  Story,  September  26,  1823,  referring  to 
Judge  William  Johnson's  recent  decision  in  a  South  Caro- 
lina case  {Elkinson  v.  Deliesseline,  Fed.  Cases,  4366) : 

"Our  brother  Johnson,  I  perceive,  has  hung  himself  on 
a  democratic  snag,  in  a  hedge  composed  entirely  of  thorny 
State  Rights  in  South  Carolina,  and  will  find  some  difii- 
culty,  I  fear,  in  getting  off  into  smooth,  open  ground. 

"You  have,  I  presume,  seen  his  opinion  in  the  National 
Intelligencer,  and  could  scarcely  have  supposed  that  it 
would  have  excited  so  much  irritation  as  it  seems  to  have 
produced.  The  subject  is  one  of  much  feeling  in  the  South. 
Of  this  I  was  apprized,  but  did  not  think  it  would  have 
shown  itself  in  such  strength  as  it  has.  The  decision  has 
been  considered  as  another  act  of  judicial  usurpation; 
but  the  sentiment  has  been  avowed  that,  if  this  be  the 
constitution,  it  is  better  to  break  that  instrument  than 
submit  to  the  principle.  Reference  has  been  made  to  the 
massacres  of  St.  Domingo,  and  the  people  have  been  re- 
minded that  those  massacres  also  originated  '  in  the  theories 
of  a  distant  government,  insensible  of  and  not  participating 
in  the  dangers  their  systems  produced.'  It  is  suggested 
that  the  point  will  be  brought  before  the  Supreme  Court, 
but  the  writer  seems  to  despair  of  a  more  favorable  decision 
from  that  tribunal,  since  they  are  deserted  by  the  friend 
in  whom  their  confidence  was  placed. 


THE  FEDERAL  BAR  AND   THE  LAW,   1815-1830     389 

''Thus  you  see  fuel  is  continually  added  to  the  fire  at 
which  the  exaltees  are  about  to  roast  the  judicial  depart- 
ment. You  have,  it  is  said,  some  laws  in  Massachusetts, 
not  very  unlike  in  principles  to  that  which  our  brother  has 
declared  unconstitutional.  We  have  its  twin  brother  in- 
Virginia;  a  case  has  been  brought  before  me  in  which  I 
might  have  considered  its  constitutionality  had  I  chosen 
to  do  so;  but  it  was  not  absolutely  necessary,  and  as  I  am 
not  fond  of  butting  against  a  wall  in  sport,  I  escaped  on 
the  construction  of  the  act."  ^ 

One  of  the  most  vivid  contemporary  views  of  the  posi- 
tion of  the  Supreme  Court  and  its  relation  to  the  subject 
of  States'  Rights  is  found  in  a  letter  of  Attorney-General 
Wirt  to  President  Monroe,  May  5,  1823,  relative  to  the 
filling  of  the  vacancy  caused  by  the  death  of  Judge  Brock- 
hoist  Livingston : 


'O" 


"Can  you  make  an  appointment  more  acceptable  to 
the  nation  than  that  of  Judge  Kent?  I  know  that  one  of 
the  factions  in  New  York  would  take  it  in  high  dudgeon 
at  first.  Probably,  too,  some  of  the  most  heated  republi- 
cans and  interested  radicals  who  seize  every  topic  for  cavil, 
might,  in  every  quarter  of  the  Union,  harp  a  little  for  a 
time  on  the  same  string.  But  Kent  holds  so  lofty  a  stand 
everywhere  for  almost  matchless  intellect  and  learning, 
as  well  as  for  spotless  purity  and  high-minded  honor  and 
patriotism,  that  I  firmly  believe  the  nation  at  large  would 
approve  and  applaud  the  appointment.  .  .  .  The  appoint- 
ment of  a  Judge  of  the  Supreme  Court  is  a  national  and 
not  a  local  concern.  The  importance  of  that  Court  in  the 
administration  of  the  Federal  Government  begins  to  be 
generally  understood  and  acknowledged.  The  local  irrita- 
tion at  some  of  their  decisions  in  particular  quarters  (as 
in  Virginia  and  Kentucky  for  instance)  are  greatly  over- 
balanced by  the  general  approbation  with  which  those 
same  decisions  have  been  received  throughout  the  Union. 

»  Unpublished  letter  in  the  Story  Papers  in  possession  of  the  Massachu- 
setts Historical  Society. 


390  A  HISTORY  OF  THE  A^MERICAN  BAR 

If  there  are  a  few  exasperated  portions  of  our  people  who 
would  be  for  narrowing  the  sphere  of  action  of  that  Court 
and  subduing  its  energies  to  gratify  popular  clamor,  there 
is  a  far  greater  number  of  our  countrymen  who  would 
wish  to  see  it  in  the  free  and  independent  exercise  of  its 
constitutional  powers,  as  the  best  means  of  preserving  the 
Constitution  itself.  ...  It  is  now  seen  on  every  hand, 
that  the  functions  to  be  performed  by  the  Supreme  Court 
of  the  United  States  are  among  the  most  difficult  and 
perilous  which  are  to  be  performed  under  the  Constitution. 
They  demand  the  loftiest  range  of  talents  and  learning 
and  a  soul  of  Roman  purity  and  firmness.  The  questions 
which  come  before  them  frequently  involve  the  fate  of  the 
Constitution,  the  happiness  of  the  whole  Nation,  and  even 
its  peace  as  it  concerns  other  nations.  .  .  . 

"With  regard  to  the  great  subject  of  State  Rights,  which 
has  produced  so  much  excitement  in  Virginia  and  Ken- 
tucky, it  happens  that,  if  he  (Kent)  has  any  learning,  it 
is  rather  in  favor  of  State  Rights.  This  has  been  shown  by 
his  decisions  in  the  steamboat  cases,  where  he  has  uniformly 
upheld  the  State  laws  of  New  York  against  all  the  objec- 
tions which  could  be  raised  of  their  repugnance  to  the 
Constitution  and  laws  of  the  United  States." 

It  is  interesting  to  compare  with  this  letter,  a  letter 
from  George  Bancroft,  December  27,  1831,  describing  an 
interview  with  John  Quincy  Adams: 

"Among  other  curious  things,  Mr.  A.  told  me  that  in 
the  year  1823  on  the  death  of  Judge  Livingston  he  had 
named  to  Mr.  Monroe,  Van  Buren  as  a  candidate  for  the 
place  on  the  bench  of  the  Supreme  Court.  .  .  .  Mr.  Adams 
thinks  that  had  Van  Buren  at  that  time  been  appointed,  he 
would  have  followed  in  the  tracks  of  Marshall  and  proved 
himself  a  sound  interpreter  of  national  principles." 

Curious  surmises  may  be  made  as  to  what  would  have 
been  the  future  history  of  the  law  as  laid  down  by  the 
Supreme  Court,  had  either  Kent  or  Van  Buren  been  in  a 
position    to    succeed    Marshall    twelve    years    later;     but 


THE  FEDER.\L  BAR  AND  THE  LAW,   1815-1830     391 

neither  of  them  was  appointed,  Smith  Thompson  of  New 
York  taking  Livingston's  place.^ 

The  increasing  power  of  the  Supreme  Court  over  the 
States  was  discussed  by  Niks'  Register,  December  18,  1824, 
as  follows: 

"There  is  one  very  important  effect  that  results  from 
conflicting  cases  between  the  Constitution  and  laws  of  the 
United  States  and  of  the  several  States.  As  yet,  they  have 
been  decided  and  settled  by  the  Supreme  Court,  but  its 
decisions,  though  acquiesced  in,  have  not  always  satisfied 
what  may  be  called  State  pride.  This,  however,  is  not 
the  worst  of  it;  for  in  the  progress  of  time,  the  exposition 
of  the  Constitution  of  the  United  States  may  more  depend 
on  the  opinions  of  the  Supreme  Court  than  on  its  own 
very  carefully  defined  powers.  It  is  not  in  human  afi"airs 
to  hope  for  perfection;  and  it  is  impossible  to  draw  up  any 
instrument  such  as  the  Constitution,  without  leaving 
some  points  that  will  bear  different  and  opposing  con- 
structions; but  we  think  it  safe  that  these  constructions 
should  in  some  degree  be  established  by  the  people  through 
the  representatives  of  the  State  in  the  Senate  than  be 
made  to  depend  on  the  opinions  of  a  mere  majority  of  the 
judges  of  the  Supreme  Court,  who,  however  honorable 
and  learned  they  may  be,  cannot  be  put  down  as  infalhble. 
It  would  appear  essential  to  the  public  harmony  that 
some  plan  should  be  adopted  by  which  the  decisions  of 
the  judges  should  be  subjected  to  a  solemn  revision  when- 
ever they  undertake  to  settle  constitutional  questions, 
and  this  revisionary  power  would  perhaps  be  best  confided 
to  the  Senate  which  has  or  is  presumed  to  have  many  of 
the  ablest  and  the  best  citizens  of  the  different  States  among 
its  members,  who  certainly  would  not  dishonor  the  Supreme 
Court,  if  appointed  to  its  bench." 

In  1824,  the  constitutionality  of  a  statute  of  one  of  the 
Northern  States  was  involved  in  a  case  which  has  played 
a  larger  part   in   determining   the   economic,   social   and 

1  Life  and  Letters  of  George  Bancroft,  by  M.  A.  DeW.  Howe  (190S). 


392  A  fflSTORY  OF  THE  AMERICAN  BAR 

political  conditions  of  the  country,  than  any  case  ever 
decided  by  the   Supreme  Court,  —  the  great  "Steamboat 
Case,"  Gibbons  v.  Ogden  (9  Wheat,   i).     For  twenty-six 
years,   Ex-Chancellor  Robert  R.  Livingston  and  Robert 
Fulton  and  their  assigns  had  enjoyed,  under  grant  from 
the  New  York  Legislature,  an  exclusive  right  to  run  steam- 
boats in  the  waters  of  New  York.    Efforts  in  the  courts  to 
break  this  monopoly  had  been  frequent  but  unavailing. 
A  case  in  the  United  States  Circuit  Court,  Livingston  v. 
Van  Ingen,  in  181 1,  had  been  dismissed  for  want  of  juris- 
diction.   A  case  in  the  State  Court  of  Appeals  between  the 
same  parties  had  resulted  in  a  decree  upholding  the  power 
of  the  State  to  grant  such  exclusive  rights.    Pending  this 
case,  the  State  had  passed  a  further  statute  authorizing 
the  seizure  of  any  steam  vessel  found  in  New  York  waters 
in  violation  of  the  Livingston  grant,  thus  practically  mak- 
ing it  impossible  for  any  person  to  try  his  rights  in  court, 
without  first  forfeiting  his  vessel.     Retaliatory  statutes 
were  passed  in  New  Jersey  and  Connecticut  forbidding 
boats  "operated  by  fire  or  steam"  under  the  license  granted 
by  the  New  York  Legislature  from  plying  in  the  waters  of 
New  Jersey,  or  of  Connecticut;    and  so  bitter  were  the 
feeUngs  aroused  by  the  monopoly  that,  as  WiUiam  Wirt 
said  in  his  final  argument  in  the  Supreme  Court  the  three 
States  "were  almost  on  the  eve  of  civil  war."    Finally,  a 
test  case  was  brought  in  New  York  by  Ex- Governor  Aaron 
Ogden,  of  New  Jersey,  who,  having  established  a  steam- 
boat hne  between  New  York  and  Elizabethport  in  defiance 
of  the  monopoly,  had  been  enjoined  by  John  R.  Livingston 
and  had  accepted  a  license  from  the  latter.    The  defendant 
was  Thomas   Gibbons,  of  Georgia,   a  former  partner  of 
Ogden,  but  who  had  refused  to  act  under  the  Livingston 
license,  and  had  started  an  opposition  line  in  18 18.     A 
motion  to  dissolve  the  injunction  issued  was  heard  by 


THE  FEDERAL  BAR  AND  THE  LAW,   i8i 5-1830     393 

Chancellor  Kent  and  denied  in  18 19;  and  the  Court  of 
Errors  sustained  Kent  in  1820.^  Thereupon  an  appeal  was 
taken  to  the  United  States  Supreme  Court,  an  interesting 
reference  to  which  is  found  in  a  letter  of  Judge  Story, 
February  28,  182 1: 

"We  are  to  take  up,  in  a  few  days,  another  question, 
whether  a  State  can  give  to  any  person  an  exclusive  right 
to  navigate  its  waters  with  steamboats,  against  the  right 
of  a  patentee,  claiming  under  the  laws  of  the  United  States. 
The  case  comes  from  New  York,  and  Mr.  Emmet  of  New 
York,  and  Mr.  Pinkney  are  on  one  side;  and  Mr.  Webster, 
Mr.  Ogden,  of  New  York,  and  Mr.  Wirt,  the  Attorney- 
General,  on  the  other.  The  arguments  will  be  very  splendid." 

The  case  was  dismissed,  however,  on  a  point  of  practise. 
Meanwhile,  other  suits  had  been  brought  in  the  United 
States  Circuit  Court  to  test  the  question  —  one  of  which, 
Sullivan  v.  Fulton  Steamboat  Company  (6  Wheaton,  450), 
in  which  Daniel  Webster  was  counsel,  reached  the  Supreme 
Court,  but  was  dismissed  for  want  of  jurisdiction. 

Before  Gibbons  v.  Ogden  came  up  in  the  Supreme  Court 
again,  William  Pinkney,  the  leading  counsel  for  Ogden, 
had  died,  February  23,  1822,  and  Thomas  J.  Oakley  of 
New  York  was  engaged  in  his  place. 

On  February  4-7,  1824,  the  case  was  argued  at 
Washington. 

"To-morrow  week,"  wrote  William  Wirt,  "will  come  on 
the  great  steamboat  question  from  New  York.  (T.  A.) 
Emmet  and  (T.  J.)  Oakley  on  one  side,  Webster  and  my- 
self on  the  other.  Come  down  and  hear  it.  Emmet's 
whole  soul  is  in  the  case  and  he  will  stretch  all  his  powers. 
Oakley  is  said  to  be  one  of  the  first  logicians  of  the  age; 

1  See  Livingston  v.  Van  Ingen,  i  Paine,  45  (181 1);  Livingston  v.  Van  Itigen, 
9  Johnson,  807  (181 2);  Livingston  v.  Ogden  and  Gibbons,  4  John.  Ch.  150 
(1819);  Gibbons  v.  Ogden,  17  John.  48S  (1820);  Steamboat  Co.  v.  Livingston, 
3  Cowen,  741;   I  Wend.  560  (1824). 


394  A  HISTORY  OF  THE  AMERICAN  BAR 

as  much  a  Phocion  as  Emmet  is  a  Themistocles,  and 
Webster  is  as  ambitious  as  Caesar.  He  will  not  be  outdone 
by  any  man  if  it  is  within  the  compass  of  his  power  to  avoid 
it.     It  will  be  a  combat  worth  witnessing.'"'  ^ 

The  arguments  excited  the  greatest  interest,  and  the 
New  York  newspapers  gave  lengthy  accounts  of  their 
brilliancy. 

The  opinion  of  the  Court  was  read  by  Chief  Justice  Mar- 
shall, March  2,  1824,  only  three  weeks  after  the  argument, 
sustaining  Webster's  broad  view  of  the  Federal  power  over 
interstate  commerce.^  The  decision  was  greeted  with  ap- 
proval by  most  of  the  newspapers  throughout  the  country, 
and  the  New  York  Evening  Post,  March  5,  1824,  said  of  it: 

^  Memoirs  of  the  Life  of  William  Wirt,  by  John  P.  Kennedy  (1849). 

Daniel  Lord,  at  the  New  York  Bar  meeting  on  the  death  of  T.  J.  Oakley, 
said: 

"Judge  Oakley  represented  the  mighty  sovereignty  of  the  State  of  New 
York.  His  associate  was  Thomas  Addis  Emmet,  and  by  whom  were  they 
met?  By  Daniel  Webster  and  William  Wirt.  These  four  men  debated 
that  question  before  Marshall,  Story,  Washington,  Todd,  and  Thompson. 
This,  I  conceive,  to  have  been  the  culmination  of  professional  eminence. 
What  court  could  have  so  great  a  question?  What  court  could  be  so  greatly 
constituted?  What  court  had  the  power  of  bringing  private  men  to  sit  in 
judgment  upon  sovereign  States?  What  court  could  feel  the  capacity  to 
arbitrate  among  argimaents  of  such  talent,  power  and  learning?  " 

See  Law  Reporter,  Vol.  XX  (1857). 

In  the  Passenger  Cases,  7  Howard,  p.  437,  in  1849,  Mr.  Justice  Wa3Tie 
said,  "The  case  of  Gibbons  v.  Ogden  in  the  extent  and  variety  of  learning, 
and  in  the  acuteness  of  distinction  with  which  it  was  argued  by  counsel,  is 
not  surpassed  by  any  other  case  in  the  reports  of  courts.  The  case  will 
always  be  a  high  and  honorable  proof  of  the  eminence  of  the  American  Bar 
of  that  day." 

2  Webster  himself  states  Marshall's  indebtedness  in  a  letter  to  Edward 
Everett,  October  30,  1851: 

"I  presume  the  argument  in  Gibbons  v.  Ogden  was  written  by  me  and 
given  to  Mr.  Wheaton.  The  argument  is  a  pretty  good  one,  and  was  on  a 
new  question.  It  has  been  often  observed  that  the  opinion  of  the  court 
delivered  by  Chief  Justice  Marshall  follows  closely  the  track  of  the  argu- 
ment. He  adopts  the  idea  which  I  remember  struck  him  at  the  time  that 
by  the  Constitution,  the  commerce  of  the  several  States  has  become  a  unit." 


THE  FEDEIL\L  BAR  AND  THE  LAW,   1815-1S30     395 

"This  morning  Chief  Justice  Marshall  delivered  one 
of  the  most  able  and  solemn  opinions  that  has  ever  been 
delivered  in  any  court  on  the  Steamboat  case.  The  court- 
room was  crowded  with  people,  and  during  more  than  an 
hour  which  was  consumed  in  pronouncing  the  decision 
of  the  court,  the  most  unbroken  silence  prevailed. 

"...  This  opinion  drawn  up  by  Chief  Justice  Marshall 
presents  one  of  the  most  powerful  efforts  of  the  human 
mind  that  has  ever  been  displayed  from  the  bench  of  any 
court.  Many  passages  indicated  a  profoundness  and  a 
forecast  in  relation  to  the  destinies  of  our  confederacy 
peculiar  to  the  great  man  who  acted  as  the  organ  of  the 
court. 

"The  steamboat  grant  is  at  an  end." 

The  immediate  result  of  the  decision  was  the  destruc- 
tion of  the  Livingston  monopoly,^  which  otherwise  would 
have  lasted  until  1838.  Its  secondary  results  were  far- 
reaching. 

It  opened  the  Hudson  River  and  Long  Island  Sound  to 
the  free  passage  of  steamboats,  thus  tremendously  in- 
creasing the  freight  and  passenger  traffic  on  those  great 
waterways,  and  proving  a  potent  factor  in  the  building  up 
of  New  York  as  a  commercial  centre.  It  promoted  inter- 
state communication  by  steam  throughout  the  country, 
by  removing  the  danger  of  similar  grants  of  monopolies 
in  other  States.-  It  was  of  immense  importance  in  de- 
veloping the  coal  industry,  then  largely  an  experiment; 
for  it  produced  a  great  demand  for  coal  as  a  fuel  on  the 

1  For  detailed  account  of  Gibbons  v.  Ogden,  presented  with  many  inter- 
esting sidelights,  see  The  Federal  Power  over  Carriers  and  Corporations, 
by  E.  Parmclee  Prentice  (1907). 

*  New  York  had  not  been  the  only  State  to  grant  a  steamboat  monopoly; 
Pennsylvania,  in  1S13,  and  Georgia,  in  1814,  had  granted  such  monopolies; 
Massachusetts,  in  1815,  had  given  an  exclusive  license  to  John  L.  Sullivan 
for  steam  tow-boats  on  the  Connecticut  River;  and  New  Hampshire  had 
granted  a  similar  license  in  1816.  Louisiana,  in  181 1,  had  granted  a  monop- 
oly, similar  to  that  in  New  York,  to  Fulton  and  Livingston, 


396  A  fflSTORY  OF  THE  AMERICAN  BAR 

steamboats.  It  was  largely  responsible  for  the  sudden 
growths  of  the  New  England  manufacturing  industries, 
by  making  possible  the  cheap  transportation  of  coal  to 
New  England  by  water.  It  has  been  the  great  factor  in 
the  economic  development  of  the  whole  country  down  to 
the  present  time. 

A  few  weeks  after  the  decision  of  the  case,  another  States' 
Rights  case  was  decided,  after  being  argued  twice  with 
extraordinary  ability.  This  was  the  famous  Oshorn  v. 
Bank  of  the  United  States  (9  Wheaton,  738).  It  arose  out 
of  attempt  on  the  part  of  the  State  of  Ohio  to  controvert 
the  decision  of  the  Supreme  Court  in  the  McCulloch  case, 
and  to  defy  an  injunction  issued  by  the  Federal  Circuit 
Court  against  the  State  Auditor  restraining  him  from 
collecting  a  tax  on  the  Bank. 

It  was  argued  in  1824  by  Charles  Hammond  and  John 
C.  Wright  ^  for  the  State  of  Ohio  and  by  Henry  Clay  for 
the  Bank,  and  re-argued  by  Ethan  Allen  Brown  ^  and 
Wright  of  Ohio  and  Robert  G.  Harper  of  Maryland,  against 
Clay,^  Daniel  Webster  and  John  Sergeant '^  for  the  Bank. 
The  Supreme  Court  again  upheld  the  constitutionality  of 
the  bank  charter  and  the  sovereignty  of  the  Federal  law 
even  over  State  officials. 

The  slavery  question  first  came  prominently  before  the 
Supreme  Court,  in  1825,  in  the  great  case  of  The  Antelope 
(10  Wheaton,  66),   argued  by  Key,  Berrien,   Charles  J. 

1  Born  in  1783,  Judge  of  Supreme  Court  of  Ohio  1831,  author  of  Ohio 
Reports  1 831-1834. 

2  Bom  in  1776,  Judge  of  Supreme  Court  of  Ohio  1810-1818,  Governor 
1818-1822,  United  States  Senator  1822-1825. 

^  Judge  Story  wrote  to  Judge  Todd,  March  14,  1824:  "Your  friend 
Clay  has  argued  before  us  with  a  good  deal  of  ability;  and  if  he  were  not  a 
candidate  for  higher  offices,  I  should  think  he  might  attain  great  eminence 
at  the  Bar.  But  he  prefers  the  fame  of  popular  talents  to  the  steady  fame 
of  the  Bar." 

*  Bom  in  1779,  Princeton  1795,  leader  of  the  Philadelphia  Bar. 


THE  FEDERAL  BAR  AND  THE  LAW,  1815-1830    397 

IngersoU  and  Wirt,  in  which  Chief  Justice  Marshall  held 
that  the  slave  trade  was  not  piracy  or  contrary  to  the  law 
of  nations,  unless  prohibited  by  statute  law  or  treaty. 

Another  noted  case  involving  the  slave  trade  was  de- 
cided by  Judge  Story,  in  1826  —  The  Marianna  Flora 
(11  Wheaton,  i)— John  Knapp  of  Boston  and  T.  A. 
Eminett  of  New  York  arguing  against  George  Blake  and 
Daniel  Webster. 

In  1829,  another  case  involving  a  further  phase  of  the 
slavery  question  arose,  in  Boyce  v.  Anderson  (2  Peters, 
150),  in  which  Chief  Justice  Marshall  was  called  upon  to 
decide  whether  a  steamboat  company  was  liable  for  loss 
of  slaves  drowned  in  an  accident  —  the  question  being 
whether  slaves  were  passengers  or  merchandise  freight, 
and  the  decision  being  that  the  Company  was  only  to  be 
fixed  with  a  common  carrier  liability  for  passengers. 

The  year  1826  is  to  be  noted  for  the  prominent  appear- 
ance of  a  future  Chief  Justice  of  the  United  States,  Roger 
B.  Taney,  who  had  argued  his  first  case  in  the  Supreme 
Court,  two  years  previously.  Of  the  case  in  which  he  now 
appeared  —  Etting  v.  Bank  of  the  United  States  (11  Wheaton, 
59),  involving  the  defalcation  of  the  cashier,  McCulloch, 
Judge  Story  wrote  in  March,  1826: 

"The  court  has  been  engaged  in  its  hard  and  dry  duties 
with  uninterrupted  diligence.  Hitherto  we  have  had  but 
little  of  that  refreshing  eloquence  which  makes  the  labors 
of  the  law  light;  but  a  case  is  Just  rising  which  bids  fair 
to  engage  us  all  in  the  best  manner.  Webster,  Wirt,  Taney 
—  a  man  of  fine  talents,  whom  you  have  probably  not 
heard  of  —  and  Emmet  are  the  combatants,  and  a  bevy 
of  ladies  are  the  promised  and  brilliant  distributors  of  the 
prizes." 

Marshall,  in  his  opinion  on  this  case,  also  spoke  of  the 
"great  efforts  which  have  been  bestowed  upon  the  case" 


SgS  A  HISTORY  OF  THE  A]MERIC.\N  BAR 

and  the  "elaborate  arguments  wliich  have  been  made  at 
the  Bar." 

In  1827,  three  cases  of  immense  effect  upon  the  future 
commercial  development  of  the  country  were  decided. 
In  the  first  —  Brown  v.  Maryland  (12  Wheaton,  419)  the 
Court  announced  for  the  first  time  the  "original  pack- 
age" doctrine^  and  the  phrase  "poKce  power"  first  ap- 
peared. Like  most  of  the  other  cases  of  tliis  period,  it 
turned  on  the  issue  of  States'  Rights.  It  was  argued  by 
Attorney-General  Wirt  and  W.  M.  Meredith  ^  against 
Roger  B.  Taney  and  Reverdy  Johnson  and  was  decided 
March  12. 

The  constitutionality  of  State  bankruptcy  statutes  was 
definitely  settled  by  the  decision,  February  19,  1827,  of 
Ogden  V.  Saunders  (12  Wheaton,  213)  —  a  case  wliich  had 
been  twice  argued  by  a  remarkable  array  of  counsel  — 
first,  March  3-5,  1824,  by  Henry  Clay,  David  B.  Ogden 
and  Charles  G.  Haines  for  the  debtor,  and  by  Daniel 
Webster  and  Henry  Wheaton  for  the  creditor,  and  re- 
argued in  1827  by  William  Wirt,  Edward  Livingston, 
David  B.  Ogden,  Samuel  Jones  and  William  Sampson 
(the  three  latter  from  New  York)  against  Webster  and 
Wheaton.  The  final  decision  was  given  in  favor  of  Webster's 
chent,  although  the  majority  of  the  Court  decided  against 
his  argument  denying  the  power  of  the  States  to  pass 
bankruptcy  laws.^     Marshall,  Story  and  Duvall,  however, 

^  The  beginning  of  the  "original  package  "  rule  may  be  traced  to  State 
statutes  adopted  under  the  Articles  of  Confederation,  in  Maryland  and 
Pennsylvania. 

See  interesting  historical  discussion  of  this  case  in  The  Federal  Power  over 
Carriers  atid  Corporations,  by  E.  Parmalee  Prentice  (1907). 

2  Bom  in  1799,  University  of  Pennsylvania  1812,  Attorney-General  of 
Pennsylvania  1861-1867. 

^  See  National  Bankrupt  Law  in  Amer.  Jurist,  Vol.  I  (January,  1829). 
See  also  Review  of  Dane's  Abridgment,  Vol.  IX,  in  A^ner.  Jurist,  Vol.  IV 
Quly,  1830),  in  which  it  is  said:   "As  long  as  Congress  neglects  to  make  a 


THE  FEDERAL  BAR  AND   THE  LAW,    i Si 5-1830    399 

dissented  on  the  constitutional  point;  and  the  opinions 
rendered  were  so  intricate  that  Webster  wrote  to  Nicholas 
Biddlc,  February  20,  1827: 

''You  see  what  a  lire  the  judges  have  made  on  the  question 
of  State  bankrupt  laws.  No  two  of  those  who  are  for  the 
validity  of  such  laws  agree  in  their  reasons.  Those  who  are 
against  their  validity  concur  entirely.  Is  there  not  an  old 
saying  —  if  there  be  not  let  it  go  for  a  new  one  —  that 
truth  is  one;   but  error  various." 

In  this  same  year,  Judge  Story  gave  a  decision  (Marshall 
dissenting),  in  Bank  of  U.  S.  v.  Dandridge  (12  Wheaton, 
64),  which  settled  for  all  time  the  doctrine,  that  approval 
of  acts  of  its  agents  by  a  corporation  may  be  shown  by  pre- 
sumptive testimony,  as  well  as  by  written  record  and  vote. 
This  case  was  a  victory  for  Webster  and  Wirt  arguing 
against  L.  W.  Tazewell  of  Virginia. 

Two  letters  from  Webster  to  Nicholas  Biddle,  President 
of  the  Bank,  relating  to  this  case,  are  of  extreme  interest. 
In  the  first,  March  21,  1826,  he  said:  ^ 

"  Dandridge's  case  was  not  reached  until  almost  the 
last  day  of  the  Court,  and  until  the  Court  had  intimated 
that  they  should  not  take  up  another  long  or  important 
cause.  It  was  ready  for  argument  and  printed  cases  are 
prepared  for  the  use  of  the  Court.  In  this  case,  according 
to  your  request,  I  engaged  Mr.  Wirt  on  the  part  of  the 
Bank,  as  I  have  already  advised  you.  I  wish  it  to  be  under- 
stood in  regard  to  this  cause  that  I  consider  myself  as 

bankrupt  law,  this  decision  will  certainly  have  a  very  satisfactory  effect  in 
leaving  the  States  to  supply  this  defect  in  national  legislation." 

1  See  The  Wrilings  and  Speeches  of  Danid  Webster,  Vol.  XVI  (1903). 

In  American  Jurist,  Vol.  IV,  p.  302  (October,  1830),  it  is  said:  "Chief 
Justice  ^Marshall  said  he  believed  that  his  opinion,  which  had  been  declared 
in  the  court  below,  gave  general  surprise  to  the  profession  and  was  gener- 
ally condemned;  still  he  adhered  to  it.  The  case  is  now  before  the  nation, 
and  Judge  Marshall,  great  as  the  authority  of  his  opinion  is,  will  have 
increasing  cause  to  find  that  in  this  case  he  is  disapproved." 


400  A  HISTORY  OF  THE  AMERICAN  BAR 

only  filling  Mr.  Sergeant's  place  temporarily.  It  he  should 
be  here  at  the  next  term  he  will  conduct  the  case  with 
Mr.  Wirt." 

On  February  20,  1827,  he  wrote: 

"As  to  Dandridge,  we  hear  nothing  from  the  Court  yet. 
The  Ch.  Jus.  I  fear  will  die  hard.  Yet  I  hope,  that  as  to 
this  question,  he  is  moribundus. 

"In  everything  else,  I  cheerfully  give  him  the  Spanish 
Benediction,  'May  he  live  a  thousand  years!'  I  feel 
a  good  deal  of  concern  about  this;  first,  because  of  the 
amount  in  this  case;  second,  because  of  its  bearing  on 
other  important  questions,  now  pending  or  arising,  as  I 
have  understood;  and  last,  because  I  have  some  little 
spice  of  professional  feeling  in  the  case,  having  spoken 
somewhat  more  freely  than  usually  befits  the  mouth  of 
an  humble  attorney  at  law,  like  myself,  of  the  'manifest 
errors'  in  the  opinion  of  the  great  Chief.  I  suppose  we 
shall  have  a  decision  in  a  few  days." 

At  the  term  of  the  Supreme  Court  in  1830,  Marshall 
gave  the  last  of  his  great  constitutional  decisions,  Craig  v. 
Missouri  (4  Peters,  410).  The  case  involved  a  State 
statute  under  which  Missouri  was  held  to  be  issuing  bills 
of  credit  in  contravention  of  the  United  States  Constitu- 
tion, and  was  one  of  the  earliest  in  which  Thomas  H. 
Benton  appeared  before  the  Supreme  Court. 

The  close  of  the  Chief  Justice's  opinion  gives  a  vivid 
idea  of  how  urgently  the  vexed  political  question  of  States' 
Rights  was  pressed  upon  the  courts  of  the  period,  and 
of  the  dignity  with  which  the  great  Chief  Justice  dealt 
with  it: 

"  In  the  arguments  we  have  been  reminded  by  one  side 
of  the  dignity  of  a  sovereign  State;  of  the  humiliation  of 
her  submitting  herself  to  this  tribunal;  of  the  dangers 
which  may  result  from  inflicting  a  wound  on  that  dignity; 
by  the  other,  of  the  still  superior  dignity  of  the  people 


THE  FEDER/VL  BAR  AND  THE  LAW,  1815-1830      401 

of  the  United  States  who  have  spoken  their  will  in  terms 
which  we  cannot  misunderstand. 

"  To  these  admonitions  we  can  only  answer,  that  if  the 
exercise  of  that  jurisdiction  which  has  been  imposed  upon 
us  by  the  Constitution  and  law  of  the  United  States  shall 
be  calculated  to  bring  on  these  dangers  which  have  been 
indicated;  or  if  it  shall  be  indispensable  to  the  preservation 
of  the  Union,  and  consequently  of  the  independence  and 
liberty  of  these  States,  these  are  considerations  which 
address  themselves  to  those  departments  which  may  with 
perfect  propriety  be  influenced  by  them.  This  department 
can  listen  only  to  the  mandates  of  law,  and  can  tread  only 
that  path  which  is  marked  out  by  duty." 

During  these  years,  18 15  to  1830,  the  changes  in  the 
United  States  Supreme  Bench  were  few.  In  1823,  Brock- 
hoist  Livingston,  of  New  York,  died,  and  a  strong  effort 
was  made  to  secure  the  appointment  of  Chancellor  James 
Kent  in  his  place;  but  Kent's  political  Federalist  views 
were  too  bitter  to  be  acceptable  to  President  Monroe,  and 
Smith  Thompson,  one  of  Kent's  associates  when  on  the 
New  York  Supreme  Court,  was  appointed.  In  1826, 
Thomas  Todd  of  Kentucky  died,  and  was  succeeded  by 
Robert  Trimble  of  Kentucky.  In  1828,  Trimble  died,  and 
John  McLean  of  Ohio,  took  his  place  in  1829.  In  the  latter 
year  Bushrod  Washington's  death  led  to  the  appointment 
of  Henry  Baldwin  of  Pennsylvania  in  1830. 

The  salary  of  the  Judges  was  changed  (under  Act  of 
February  20,  1819)  from  $4,000  to  $5,000  for  the  Chief 
Justice,  and  from  $3,500  to  $4,000  for  the  Associate 
Justices. 

During  this  period,  however,  the  niunber,  as  well  as  the 
importance  of  the  cases  before  the  Court,  had  increased 
enormously. 

From  1803  until  1827,  the  Court  had  met  on  the  first 
Monday  in  February;    and  its  sitting  usually  lasted  sLx 


402  A  HISTORY  OF  THE  AMERICAN  BAR 

weeks.  In  1825,  however,  when  it  adjourned,  March  21, 
only  38  out  of  164  cases  on  the  docket  had  been  argued, 
hardly  more  than  one  a  day.  In  1826,  only  49  out  of  190 
cases  were  heard.  It  became  necessary  therefore  to  lengthen 
the  term;  consequently,  beginning  in  1827  (12  Wheaton) 
the  Court  met  on  the  second  Monday  in  January  (under 
Act  of  May  4,  1826).  In  that  year  "after  an  arduous  and 
important  session,  80  cases,  some  of  them  of  deep  and 
dehcate  interest  and  of  high  consequence"  were  heard.^ 

These  years  constituted  in  American  jurisprudence  what 
may  be  justly  characterized  as  the  reign  of  Marshall;  for 
in  these  fifteen  years  the  great  doctrines  of  American 
constitutional  law  were  firmly  estabUshed  by  him;  and 
the  supremacy  of  the  power  of  the  Federal  Government 
forever  secured  against  successful  attack.  "Marshall 
found  the  Constitution  paper;  and  he  made  it  power," 
said  James  A.  Garfield.  "He  found  a  skeleton,  and  he 
clothed  it  with  flesh  and  blood."  "He  was  not  the 
commentator  upon  American  constitutional  law;  he  was 
not  the  expounder  of  it;  he  was  the  author,  the  creator 
of  it.  .  .  .  The  field  was  absolutely  untried.  Never  before 
had  there  been  such  a  science  in  the  world  as  the  law  of  a 
written  constitution  of  government.  There  were  no  prec- 
edents. .  .  .  An  original  field  of  judicial  exertion  very 
rarely  offers  itself.  To  no  other  judge,  has  it  ever  been 
presented,  except  to  Mansfield,  in  the  establishment  of 
the  commercial  law;  unless  perhaps  the  remark  may  be 
extended  to  the  labors  of  Lord  Stowell,  in  the  department 
of  English  consistorial  law,  and  to  those  of  Lord  Hardwicke 
in  equity."  ^ 

1  See  mies'  Register,  Vol.  XXXII,  p.  80;  Vol.  XXX,  p.  83;  Vol.  XXVIII, 
p.  49. 

2  See  address  of  Edward  J.  Phelps  before  the  American  Bar  Association 
(1879). 


THE  FEDERAL  BAR  AND  THE  LAW,   1815-1830       403 

In  his  five  great  cases  —  the  Marbury  case,  the  Cohens 
case,  the  INIcCuUoch  case,  the  Dartmouth  College  case 
and  the  Sturgis  case  —  Marshall  did  not  cite  a  single  de- 
cision as  authority.  "His  only  light  was  the  inward  light 
of  reason.  He  had  'no  guides  but  the  primal  principles  of 
truth  and  justice.'"  ^  "The  decisions  of  no  other  eminent 
judges  have  so  few  citations  of  authorities.  It  used  to  be  said 
of  him  that,  when  he  had  formed  his  conclusions,  he  would 
say  to  one  of  his  colleagues,  'There,  Story,  is  the  law. 
Now  you  must  find  the  authorities.'  Story  himself  said, 
'When  I  examine  a  question,  I  go  from  headland  to  head- 
land, from  case  to  case;  Marshall  has  a  compass,  puts  out 
to  sea,  and  goes  directly  to  the  result.'  "  ^ 

In  thirty  years,  Marshall  had  transformed  the  Supreme 
Court,  from  a  weak  and  uncertain  body,  hesitating  to 
measure  its  strength  against  the  prevailing  jealousy  of  the 
Federal  power,  into  an  acknowledged  supreme  authority. 

As  early  as  1820,  a  writer  in  the  North  American  Review 
(Vol.  X),  in  a  review  of  volume  four  of  Wheaton's  Reports 
spoke  of  the  increasing  weight  of  the  decisions  on  constitu- 
tional questions: 

"This  part  of  the  law  of  the  land  is  daily  becoming  more 
interesting,  and  exerting  a  wider  influence  upon  the  affairs 
of  our  country,  from  the  respect  that  is  generally  felt 
for  judicial  decisions  from  the  intelligible  forms  in  which 
principles  are  exhibited  and  from  the  gradual  formation 
of  a  body  of  constitutional  exposition  which  will  furnish 
precedents  and  analogies  to  future  times." 

And  a  review  of  Kent's  Commentaries  by  the  able  !Massa- 
chusetts  lawyer,  Willard  Phillips,  in  1827,  expresses  the 
same  view :  ^ 

•  Address  of  Le  Baron  Colt  before  the  Rhode  Island  State  Bar  Asso- 
ciation, February  5,  igor. 

*  Professor  Theophilus  Parsons,  in  American  Law  Review,  Vol.  I. 
»  See  North  American  Revicu.^,  Vol.  XXIV  (1827). 


404  A  fflSTORY  OF  THE  AMERICAN  BAR 

"The  decision  in  Weymouth  v.  Southard  (lo  Wheaton,  i) 
on  one  of  the  Kentucky  'stop  laws'  in  relief  of  debtors,^ 
and  some  other  decisions  of  the  Supreme  Court  have 
given  great  dissatisfaction  to  some  of  the  people  of  Ken- 
tucky and  provoked  much  virulent  declamation  against 
the  court  itself.  During  the  late  session  of  Congress,  some 
member  intimated  that  a  judicial  tyranny  was  secretly 
creeping  in  on  us.  .  .  .  But  notwithstanding  all  that  has 
been  said  to  the  contrary,  we  verily  believe  that  the  citizens 
.  .  .  feel  their  persons  and  rights  almost  as  safe  in  the  hands 
of  the  Supreme  Court  of  the  United  States  as  in  those  of 
some  of  the  States." 

And  in  1828,  so  staunch  a  Repubhcan,  States'  Rights 
newspaper  as  Niks'  Register  said,  January  19: 

"Though  the  constitutional  construction  of  this  lofty 
tribunal  is  not  wholly  conformable  to  our  humble  opinion 
of  right,  we  have  often  thought  that  no  person  could  behold 
this  venerable  body  without  profound  respect  for  the  virtue 
and  talents  concentrated  on  its  bench;  and  with  a  great 
degree  of  confidence  that  as  there  must  be  some  power  in 
every  government  having  final  effect,  it  could  hardly  be 
vested  anywhere  more  safely  than  in  the  Supreme  Court 
as  at  present  filled." 

Three  decades  later,  Edward  Everett  paid  to  the  Su- 
preme Court  of  this  earlier  period  the  following  eloquent 
tribute:^ 

"I  do  not  know  what  others  may  think  on  the  subject, 
but  for  myself,  sir,  I  will  say,  that  if  all  the  labors,  the 
sacrifices,  and  the  waste  of  treasure  and  blood,  from  the 

*  This  case  involved  the  Kentucky  statutes  requiring  judgment  credi- 
tors to  indorse  on  their  executions  that  bank  notes  of  the  Bank  of  Kentucky 
or  of  the  Bank  of  the  Commonwealth  of  Kentucky,  would  be  taken  in  pay- 
ment. This  law  arose  out  of  the  antagonism  to  the  Bank  of  the  United  States. 
Chief  Justice  Marshall  held  that  the  statute  did  not  apply  to  executions 
issued  in  the  Federal  courts. 

2  See  Address,  February  26,  1851,  in  EvereWs  Orations,  Vol.  III. 


THE  FEDERAL  BAR  AND   THE  LAW,   1S15-1S30     405 

first  landing  at  Jamestown  or  Pl3'mouth,  were  to  give  us 
nothing  else  than  the  Supreme  Court  of  the  United  States, 
this  revered  tribunal  for  the  settlement  of  international 
disputes  (for  such  it  may  be  called),  I  should  say  the  sacri- 
fice was  well  made.  I  have  trodden  with  emotion  the 
threshold  of  Westminster  Hall  and  of  the  Palace  of  Justice 
in  France;  I  thought  with  respect  of  a  long  line  of  illustrious 
chancellors  and  judges  surrounded  with  the  insignia  of 
ofiice,  clothed  in  scarlet  and  ermine,  who  within  these 
ancient  halls  have  without  fear  or  favor  administered 
justice  between  powerful  litigants.  But  it  is  with  deeper 
emotions  of  reverence,  it  is  with  something  like  awe,  that 
I  have  entered  the  Supreme  Court  at  Washington.  Not 
that  I  have  there  heard  strains  of  forensic  eloquence,  rarely 
equalled,  never  surpassed,  from  the  Wirts,  the  Pinkneys, 
and  the  Websters;  but  because  I  have  seen  a  bright  dis- 
play of  the  moral  sublime  in  human  affairs.  I  have  wit- 
nessed from  the  low  dark  bench,  destitute  of  the  emblems 
of  power,  from  the  lips  of  some  grave  and  venerable  magis- 
trate, to  whom  years  and  gray  hairs  could  add  no  new  title 
to  respect  (I  need  write  no  name  under  that  portrait), 
the  voice  of  equity,  and  justice  has  gone  forth  to  the  most 
powerful  State  of  the  Union,  administering  the  law  be- 
tween citizens  of  independent  States,  settling  dangerous 
controversies,  adjusting  disputed  boundaries,  annulling 
unconstitutional  laws,  reversing  erroneous  decisions,  and 
with  a  few  mild  words  of  judicial  wisdom  disposing  of 
questions  a  hundred  fold  more  important  than  those  which, 
within  the  past  year,  from  the  plains  of  Holstein,  have 
shaken  the  pillars  of  continental  Europe,  and  all  but  brought 
a  million  of  men  into  deadly  conflict  with  one  another." 

It  is  curious  to  note,  however,  that  in  spite  of  the  im- 
portance of  the  cases  before  the  Court,  the  legal  profes- 
sion in  general  had  not  at  that  time  begun  to  realize  the 
necessity  of  a  thorough  knowledge  of  its  decisions.  The 
number  of  lawyers  practising  before  the  Court  was  com- 
paratively small,  and  the  sale  of  Supreme  Court  reports 
very   slight.     Daniel  Webster  wrote  in   18 18,   reviewing 


4o6  A  HISTORY  OF  THE  AMERICAN  BAR 

volume  three  of  Wheaton's  Reports,  "it  is  not  very  rapid. 
The  number  of  law  libraries  which  contain  a  complete 
set  is  comparatively  small."  ^ 

And  as  late  as  1830,  Joseph  Hopkinson,  reviewing  the 
Condensed  Reports  of  the  United  States  Supreme  Court  by 
R.  Peters,  wrote:  ^ 

"The  editor  goes  on  to  inform  us  that  the  reports  of 
the  cases  argued  and  determined  in  the  Supreme  Court 
are  contained  in  24  volumes  which  are  so  costly  that  there 
are  found  but  few  copies  ...  in  many  large  districts 
of  our  country  in  which  there  are  Federal  and  State  judicial 
tribunals.  In  some  of  those  districts,  not  a  single  copy 
of  the  Reports  is  in  the  possession  of  anyone.  ...  An 
important  result  of  an  extended  circulation  .  .  .  will 
be  found  in  the  dissemination  of  the  knowledge  of  the 
labours  and  usefulness  of  this  tribunal,  and  a  corresponding 
increase  with  the  people  of  the  United  States  of  their  attach- 
ment and  veneration  for  this  department  of  their  govern- 
ment. Few  of  our  citizens  know  what  this  Court  has  done 
for  them." 


NOTE 

In  Niles^  Register  for  April  10,  1830,  some  very  interesting 
statistics  are  given,  illustrating  the  influence  of  the  decisions 
of  the  Supreme  Court  on  the  final  status  of  our  law,  and  the 
precarious  reliance  to  be  placed  on  the  decisions  of  the  inferior 
Federal  Courts.  A  quotation  is  made  from  an  article  written 
by  a  correspondent  in  the  National  Intelligencer,  giving  the  result 
of  an  examination  of  the  reports  of  Dallas,  Cranch,  Wheaton, 
and  volumes  one  and  two  of  Peters,  in  showing  the  number  of 
cases  decided  in  the  inferior  Federal  Courts  in  the  forty  years 
between  1789  and  1829  which  were  appealed  to  the  Supreme 
Court,  and  the  result  of  these  cases  in  the  Supreme  Court,  as 
follows: 

1  See  North  American  Review,  Vol.  VIII  (December,  1818). 
*  See  American  Quarterly  Review,  Vol.  VII  (March,  1830). 


THE  FEDER^VL  BAR  AND  THE  LAW,   1815-1830       407 

Districts.  Affirmed.    Reversed.    Per  cent  affirmed. 

N.  H 3  I 

Mass 28  18                    stVs 

R.I 16  16 

Vermont i  o 

Conn 4  4                     52% 

N.  Y IS  14 

N.J 4  o 

Penn 21  12                     6714 

Del 4  o 

Md 39  39                     52% 

D.  ofC 137  97                     SSVs 

Va IS  10 

N.  Car S  3                    60% 

So.  Car 13  " 

Ga 20  25                     471/2 

Ohio 13  12 

Ky 41  31                     S5V2 

Tenn 20  17 

111 I  o                   100 

Ind o  I 

Ala 3  3                     SO 

Miss 3  3                     SO 

Orleans 4  3                     S7 

La _i5  _8                     65% 

425  328                   S^Vs 


CHAPTER  XVI 

THE   FEDERAL   BAR  AND  LAW,    1830-1860 

The  Federal  Bar  in  the  years  from  1830  to  i860  showed 
a  marked  change  from  that  of  the  first  thirty  years  of  the 
Nineteenth  Century.^  Daniel  Webster  continued,  until 
his  death  in  1853,  the  undisputed  head;  but  the  lawyers 
of  Maryland,  Pennsylvania  and  Virginia  no  longer  mo- 
nopolized the  arguments.  Massachusetts  was  brilliantly 
represented  by  noted  lawyers  like  Franklin  Dexter,  Charles 
G.    Loring,    Sidney   Bartlett,    Caleb    Cushing,^   John   H. 

1  Between  1830  and  i860  only  nine  new  States  were  admitted  into  the 
Union  in  addition  to  the  twenty-three  composing  the  United  States  in  1830. 

Arkansas  was  admitted  in  1836.  Its  first  law  reports  were  Albert  Pike's 
in  1840. 

Michigan  was  admitted  in  1837.  Its  first  law  reports  were  Samuel  T. 
Douglass'  in  1846. 

Florida  was  admitted  in  1845.  Its  first  law  reports  were  Joseph  Branch's 
in    1847. 

Texas  was  admitted  in  1845.  Its  first  law  reports  were  Webb  and  Duval's 
in  1848,  although  James  W.  Dallam  published  a  volume  of  decisions  in  1845. 

loKa  was  admitted  in  1846.  Its  first  law  reports  were  Eastin  Morris' 
in  1847,  covering  Territorial  court  decisions,  George  Greene's  in  1849,  cov- 
ering State  court  decisions. 

Wisconsin  was  admitted  in  1847.  Its  first  law  reports  were  Daniel  H. 
Chandler's  in  1850. 

California  was  admitted  in  1850.  Its  first  law  reports  were  Nathaniel 
Bennett's  in  1851. 

Minnesota  was  admitted  in  1857.  Its  first  law  reports  were  Harvey 
Officer's  in  1858. 

Oregon  was  admitted  in  1859.    Its  first  law  reports  were  in  1862. 

2  Bom  in  1800,  a  Harvard  graduate  of  1817,  Judge  of  Massachusetts 
Supreme  Court  1852,  Attorney-General  of  the  United  States  1853-1857. 


THE  FEDERAL  BAR  AND  LAW,   183(^1860         409 

Clifford/  B.  F.  Hallett,^  John  Davis,'  James  T.  Austin," 
Richard  Fletcher  ^  and  Willard  Phillips.  In  1840,  Theoph- 
ilus  Parsons,  Jr.,  argued  Peters  v.  Warren  Ins.  Co.  ("14 
Peters,  99)  against  Webster.  In  1842,  Richard  H.  Dana, 
Jr.,^  argued  the  famous  case  of  Sunft  v.  Tyson  (16  Peters,  i) ; 
and  in  the  same  year  Rufus  Choate  ^  made  his  first  ap- 
pearance in  Prouty  v.  Ruggles.  In  1849,  Benjamin  R. 
Curtis  ^  argued  the  noted  case  of  Peck  v.  Jenness  (7  How- 
ard, 612). 

New  York  sent  a  distinguished  list  of  counsel,  Ogden 
Hoffman,^  John  C.  Spencer,^°  Benjamin  F.  Butler,^^  Charles 
0'Conor,i2  Samuel  Beardsley,"  George  Wood,  Daniel 
Lord,"  William  H.  Seward,^^  Edward  M.  Dickerman,  R. 
H.  Gillet  and  William  Curtis  Noyes. 

The  District  of  Columbia  law^^ers,  Key,   Coxe,   Simms, 

1  Born  in  1809,  Brown  1827,  Attorney-General  of  [Massachusetts  1849- 
1853,  Governor  1853,  Attorney-General  1854-1858. 

2  Born  in  1797,  BrowTi  i8io,  United  States  District  Attorney  1853. 

»  Bom  in  1787,  Yale  1812,  United  States  Senator  1835-1841,  Governor 
1841,  United  States  Senator  1845-1853. 

*  Born  in  1784,  Harvard  1802,  son-in-law  of  Elbridge  Gerry,  Attorney- 
General  of  Massachusetts  183 2- 1843. 

*  Bom  in  1788,  Dartmouth  1806,  studied  with  Daniel  Webster,  Judge 
Massachusetts  Supreme  Court  1848. 

^  Bom  in  1815,  Harvard  1837,  United  States  District  Attorney  1861- 
1866. 

^  Bom  in  1799,  Dartmouth  1819,  United  States  Senator  1841-1845,  Mas- 
sachusetts Attorney-General  1853-1854. 

8  Born  in  1809,  Harvard  1829,  Judge  United  States  Supreme  Court  1851. 

'  Bom  in  1793,  Columbia  181 2. 

"  Born  in  1788,  son  of  Chief  Justice  Ambrose  Spencer,  Union  College 
1806. 

"  Bom  in  1795,  United  States  Attorney-General  1833-1838. 

"  Bom  in  1804. 

"  Born  in  1790,  Judge  New  York  Supreme  Court  1844,  Chief  Justice  1847. 

"  Born  in  1795,  Yale  1814,  studied  at  the  Litchfield  Law  School. 

"  Born  in  1801,  Union  College  1816-1819,  studied  ^nth  John  Anthon, 
John  Duer  and  Ogden  Hoffman,  Governor  1S38-1842,  United  States  Senator 
1849-186 I. 


4IO  A  HISTORY  OF  THE  AMERICAN  BAR 

Mason  and  the  veteran  Thomas  Swann  (until  his  death 
in  1840)  argued  a  vast  number  of  cases.  In  the  later  years 
there  appeared  Henry  May,  Robert  J.  Brent  and  Joseph 
H.  Bradley. 

From  Illinois,  Abraham  Lincoln  ^  appeared,  in  1850,  in 
Brabster  v.  Gibson  (9  Howard,  263);  and  other  lawyers  of 
distinction  were  Sidney  Breese,^  S.  A.  Douglas,^  Charles 
Fox,  Orville  H.  Browning,'*  James  Shields,^  Edward  D. 
Baker  and  Lyman  Trumbull.^ 

William  Wirt  of  Maryland  continued  in  constant  and 
vigorous  practise  until  his  death  in  1834,  and  his  place  at 
the  Bar  was  taken  by  Reverdy  Johnson,'^  who,  for  many 
years  after  Webster's  death,  was  regarded  as  the  leading 
American  lawyer. 

From  Kentucky  came  Clay,  Bibb,  Wickliffe,  John  J. 
Crittenden  ^  and  James  T.  Morehead.^  From  Georgia  came 
John  McPherson  Berrien ^°  and  William  H.  Crawford;" 

*  Bom  in  1809. 

2  Bom  in  1800,  United  States  Senator  1843-1849,  Judge  Illinois  Supreme 
Court  1841-1843,  1871-1872,  Chief  Justice  1873-1878. 
^  Bora  in  1813,  United  States  Senator  1847-1861. 

*  Bom  in  1810,  United  States  Senator  1 861-1863. 

6  Born  in  181 2,  Judge  of  Supreme  Court  1843-1845,  United  States 
Senator  1849-1855. 

"5  Born  in  18 13,  Judge  of  Supreme  Court  1848-1854,  United  States 
Senator  1855-1867. 

^  Bom  in  1796,  St.  Johns  College,  United  States  Attorney-General  1849- 
1850.  An  interesting  article  on  The  Supreme  Court  in  185^-1854  in  American 
Law  Register,  Vol.  IV  (1853-1854),  says  that  "the  largest  practice  before 
the  Court  is  that  of  Reverdy  Johnson." 

8  Bora  in  1787,  William  and  Mary  College  1807,  1809,  Attorney-Genera! 
of  Territory  of  Illinois,  181 7,  1829-1835,  United  States  Senator  from  Ken- 
tucky, 1827. 

*  Bom  in  1797,  United  States  Senator  1841-1847. 

*°  Bom  in  1781,  Princeton  1796,  Judge  United  States  District  Court  1810- 
1821,  United  States  Senator  1825-1829,  1840-1842,  Attorney-General  of 
United  States  1829-1831. 

"  Born  in  1772,  United  States  Senator  1807-1813. 


THE  FEDERAL  BAR  AND  LAW,  1830-1860         411 

from  Mississippi,  Robert  J.  Walker/  Volney  E.  Howard, 
John  Henderson  2  and   Sergeant  S.  Prentiss.' 

From  Missouri  came  Thomas  H.  Benton,^  who 
argued  the  great  case  of  Craig  v.  Missouri  (4  Peters, 
410)  in  1830,  Hamilton  R.  Gamble,^  and  Henry  S. 
Geyer.^ 

From  Ohio  there  were  Henry  Stanberry,'  and  Salmon 
P.  Chase  ^  who  first  appeared  in  1836,  Noah  H.  Swayne,^ 
Bellamy  Storer,  William  Lawrence  and  George  E. 
Pugh.^° 

From  Rhode  Island,  there  were  Albert  C.  Greene," 
Richard  W.  Greene,  Thomas  A.  Jenckes  and  Samuel 
Ames.^^ 

From  Pennsylvania,  the  veteran  John  Sergeant  headed 
the  list  of  eminent  lawyers,  which  also  included  Horace 
Binney,^^  Charles  J.  Ingersoll,  Joseph  R.  Ingersoll,  William 
M.   Meredith,  James    Campbell,^^    Edwin    M.   Stanton,^^ 

'  Bom  in  1801,  University  of  Pennsylvania  1819,  United  States  Senator 
1836-1845,  Secretary  of  Treasury  1845-1849. 

2  Born  in  1795,  United  States  Senator  1849-1851. 

'  Born  in  1808,  Bowdoin  College  1826. 

*  Bom  in  1782,  United  States  Senator  1821-1851. 

6  Bom  in  1798,  Judge  Supreme  Court  1851-1855. 

8  Bom  in  1790,  United  States  Senator  1851-1857. 

'  Bom  in  1803,  Washington  College  1819,  Attorney-General  of  Ohio  1846, 
United  States  Attorney-General  1866-1868. 

8  Bom  in  1808,  Dartmouth  1826,  studied  with  Wirt  1827,  United  States 
Senator  1849-1855,  Governor  1855-1861,  Chief  Justice  of  the  United 
States  1864-1873. 

»  Bom  in  1804,  United  States  District  Attorney  1831-1841,  Judge  United 
States  Supreme  Court  186  2-1 881. 

"  Bom  in  1822,  United  States  Senator  1855-1861. 

"  Born  in  1791,  Attomey-General  of  Rhode  Island  1825-1843,  United 
States  Senator  1845-185 1. 

"  Bom  in  1806,  Chief  Justice  of  Rhode  Island  1856-1865. 

"  Born  in  1780,  Harvard  1797,  admitted  1800. 

"  Born  in  1813,  Attomey-General  of  Pennsylvania  1852. 

"  Bora  in  1814,  Kenyon  1833,  United  States  Attorney-General  1S61. 


412  A  HISTORY  OF  THE  AMERICAN  BAR 

Henry  D.  Gilpin/  George  M.  Dallas  ^  and  Job  R. 
Tyson.^ 

From  Michigan  came  William  Woodbridge/  George  E. 
Hand  and  Ezra  C.  Seaman. 

From  Alabama  came  John  A.  Campbell,^  Leroy  P. 
Walker  and  Alexander  White. 

South  Carolina  sent  James  L.  Petigru.^ 

From  Arkansas  came  William  K.  Sebastian/  and  Albert 

Pike. 

Louisiana  sent  a  large  corps  of  eminent  lawyers:  Alex- 
ander J.  Porter,^  Edward  Douglas  White,^  George  Eustis/" 
Pierre  Soule,"  Charles  M.  Conrad/^  Louis  Janin,  Judah  P. 
Benjamin/3  ^nd  WilHam  H.  Hunt." 

From  Indiana  came  Albert  S.  White/^  Oliver  H.  Smith/« 
Richard  W.  Thompson,"  Samuel  Judah,  and  Thomas  A. 
Hendricks.^^ 

1  Born  in  1801,  University  of  Pennsylvania  1819,  studied  with  Joseph  R. 
IngersoU,  United  States  District  Attorney  1832,  United  States  Attorney- 
General  I 840- I 84 I. 

*  Bom  in  1792,  Princeton  1810,  United  States  District  Attorney  1829, 
United  States  Senator  1831-1833,  Vice-President  1845-1849- 

^  Bom  in  1803. 

*  Bom  in  1780,  Governor  1840-1841,  United  States  Senator  1841-1847. 
6  Bom  in  1811,  Judge  United  States  Supreme  Court  1853-1861. 

«  Born  in  1789,  Attomey-General  1822-1830. 
">  Bom  in  1814,  United  States  Senator  1847-1861. 
8  Bom  in  1796,  Judge  of  Supreme  Court  1821-1833,  United  States 
Senator,  1834-1843. 

3  Bom  in  1795,  Governor  1834-1838. 

10  Bom  in  1796,  Harvard  1815,  Chief  Justice  of  Supreme  Court,  1846-1852. 
"  Bom  in  1802,  United  States  Senator,  1847-1853. 
»2  Bom  in  1804,  United  States  Senator  1842-1843. 
"  Bom  in  1811,  United  States  Senator  1852-1861. 
"  Bom  in  1824,  Attorney-General  of  Louisiana,  1876. 
"  Born  in  1803,  Union  1822,  United  States  Senator  1839-1845. 
"  Bom  in  1794,  United  States  Senator  183  7-1 848. 
"  Bom  in  1809. 
"  Bom  in  1819,  United  States  Senator  1863-1869,  Vice-President,  1885. 


THE  FEDERAL  BAR  AND  LAW,   1830-1860         413 

From  New  Jersey  came  William  L.  Dayton/  Samuel  L. 
Southard,"  and  Joseph  P.  Bradley.' 

From  Maine  came  WiUiam  Pitt  Fessenden  "*  and  Charles 
G.  Daveis. 

From  North  Carolina  came  George  E.  Badger.^ 

The  new  States  of  Florida,  Texas,  Iowa,  Wisconsin  and 
Cahfornia  sent  a  few  lawyers  of  distinction,  but  their 
Bars  were  more  adequately  represented  at  a  later  period. 

Perhaps  the  most  notable  feature  of  the  Federal  Bar 
was  the  very  great  number  of  cases  argued  by  members 
of  the  United  States  Senate.  The  mass  of  litigation  from 
the  Southern  and  Western  States  also  marked  this  era. 

The  death  of  Webster  in  1853,  o^  Clay  in  1852  and  of 
Calhoun^  in  1850,  removed  three  of  the  greatest  legal  lights 
of  this  period. 

The  years  1831  and  1832  were  notable  in  the  field  of 
Federal  law,  as  well  as  in  politics,  for  another  determined 
attack  on  Federal  sovereignty.  January  28,  1831,  Story 
wrote: 

"A  most  important  and  alarming  measure  ...  to 
repeal  the  25th  section  of  the  Judiciary  Act.  If  it  should 
prevail  (of  which  I  have  not  any  expectation),  it  would 
deprive  the  Supreme  Court  of  the  power  to  revise  the 
decisions  of  the  State  courts  and  State  Legislature  in 
all  cases  in  which  they  were  repugnant  to  the  Constitution 
of  the  United  States,  so  that  all  laws  passed  and  all  decisions 
made,  however  destructive  to  the  National  Government, 

^  Bom  in  1807,  Princeton  1S25,  Judge  of  Supreme  Court  1831-1842, 
United  States  Senator  1842-1856,  Attorney-General,  1857-1S61. 

'  Bom  in  1787,  Judge  of  Supreme  Court  1815-1820,  United  States 
Senator  i82i-i823,*i833-i842,  Attorney-General  1829-1832,  Governor  1832. 

'  Bom  in  1813,  Judge  of  United  States  Supreme  Court  1870-1892. 

*  Bom  in  1S06,  Bowdoin  1823,  United  States  Senator  1853-1865. 

*  Bom  in  1795,  Yale  1813,  United  States  Senator  1846-1855. 

8  Bom  in  1782,  Yale  1806,  Vice-President  1825-1S32,  United  States 
Senator  1833-1843,  1845-1850. 


414  A  HISTORY  OF  THE  AMERICAN  BAR 

would  have  no  power  of  redress.    The  introduction  of  it 
shows  the  spirit  of  the  times." 

This  bill  was  strongly  urged  by  the  upholders  of  the 
States'  Rights  doctrine,  and  was  the  result  of  the  bitter 
feeling  created  by  Judge  Story's  powerful  opinion  in 
Martin  v.  Hunter  and  Marshall's  in  Cohens  v.  Virginia, 
and  in  the  long  Hne  of  opinions  in  which  the  Supreme  Court 
had  now  definitely  established  its  right  to  review  the  de- 
cisions of  State  courts.  The  bill  was  defeated  by  a  vote  of 
137  to  51;  all  but  6  of  the  51  votes  coming  from  Southern 
States. 

In  the  same  year  occurred  the  case  of  the  Cherokee 
Nation  v.  Georgia  (5  Peters,  i)  involving  the  constitutional- 
ity of  a  Georgia  statute  dealing  with  the  Cherokee  Indian 
lands,  in  countervention  of  a  United  States  Treaty. 

In  this  case,  William  Wirt  and  John  Sergeant  appeared 
for  the  Cherokee  Chiefs  and  Horace  Binney,  James  Kent, 
Ambrose  Spencer  and  Daniel  Webster  were  their  advisers 
out  of  court,  —  a  remarkable  array  of  legal  talent.  The 
State  of  Georgia,  declining  to  recognize  the  jurisdiction  of 
the  United  States  Supreme  Court,  refused  to  appear;  the 
Court,  however  (Story  and  Thompson  dissenting),  decided 
the  case  on  a  technical  point  in  favor  of  the  State,  although 
the  Chief  Justice  stated  in  his  opinion:  "If  courts  were 
permitted  to  indulge  their  sympathies,  a  case  better  calcu- 
lated to  excite  them  can  scarcely  be  imagined."  "The 
great  interest  excited  throughout  the  Union  by  this  con- 
troversy," said  the  North  American  Review  of  that  period, 
"was  naturally  to  be  expected  from  the  novelty  of  the 
case,  the  dignity  of  the  parties  and  the  question,  and  the 
high  importance  of  the  principles  involved."  ^ 

The  rights  of  the  State  of  Georgia  were  again  involved 

*  See  also  review  of  The  Cherokee  Case,  by  Joseph  Hopkinson,  in  Amer. 
Quart.  Review,  Vol.  X  (March,  1832). 


THE  FEDERAL  BAR  AND  LAW,   1 830-1 860         415 

in  1832  in  Worcester  v.  Georgia  (6  Peters,  515),  another 
case  involving  the  Cherokee  Lands  statute,  in  which  the 
Court  decided  it  unconstitutional,  and  issued  a  mandate 
ordering  the  release  of  persons  imprisoned  by  virtue  of 
the  statute.  Of  this  case  Judge  Story  wrote  to  his  wife, 
February  26,  1832: 

"We  have  had  from  Mr.  Wirt  and  Mr.  Sergeant  in  the 
past  week  some  fine  arguments  in  the  Cherokee  case, 
brought  before  us  in  a  new  form.  .  .  .  Both  of  the  speeches 
were  very  able,  and  Mr.  Wirt's  in  particular  was  uncom- 
monly eloquent,  forcible  and  finished.  .  .  .  No  person 
appeared  for  the  State  of  Georgia." 

And  he  wrote  to  Professor  Ticknor,  March  8 : 

''We  have  Just  decided  the  Cherokee  case,  and  reversed 
the  decisions  of  the  State  Court  of  Georgia,  and  declared 
her  laws  unconstitutional.  The  decision  produced  a  very 
strong  sensation  in  both  houses;  Georgia  is  full  of  anger 
and  violence.  .  .  .  Probably  she  will  resist  the  execution 
of  our  judgment,  and  if  she  does  I  do  not  believe  the  Presi- 
dent will  interfere.  .  .  .  The  Court  has  done  its  duty. 
Let  the  Nation  do  theirs." 

On  March  4,  he  wrote  to  his  wife: 

"Yesterday  morning  the  Chief  Justice  delivered  the 
opinion  of  the  court  in  the  Cherokee  case,  in  favor  of  the 
missionaries.  It  was  a  very  able  opinion  in  his  best  man- 
ner. Thanks  be  to  God  the  Court  can  wash  their  hands 
clean  of  the  iniquity  of  oppressing  the  Indians  and  dis- 
regarding their  rights.  .  .  . 

"We  shall  adjourn  about  the  sixteenth  of  the  month, 
and  I  shall  move  towards  Cambridge  \\ith  all  the  rapidity 
with  which  steam  and  coaches  can  carry  me." 

Of  the  Supreme  Court  room  at  this  period,  Harriet  Marti- 
neau  gave  her  well  known  account  in  her  Retrospect  of 
Wester?i  Travel: 


41 6  A  HISTORY  OF  THE  AMERICAN  BAR 

"I  have  watched  the  assemblage  when  the  Chief  Justice 
was  delivering  a  judgment,  the  three  judges  on  either  hand 
gazing  at  him  more  like  learners  than  associates;  Webster 
standing  firm  as  a  rock,  his  large,  deep-set  eyes  wide  awake, 
his  lips  compressed,  and  his  whole  countenance  in  that 
intent  stillness  which  easily  lixes  the  eye  of  the  stranger. 
Clay  leaning  against  the  desk  in  an  attitude  whose  grace 
contrasts  strangely  with  the  slovenly  make  of  his  dress, 
his  snuff  box  for  the  moment  imopened  in  his  hand,  his 
small  grey  eye,  and  placid  half-smile  conveying  an  expres- 
sion of  pleasure,  which  redeems  his  face  from  its  usual  un- 
accountable commonness.  The  Attorney-General  [Taney] 
his  fingers  playing  among  his  papers,  his  quick  black  eye 
and  thin  tremulous  Hps  for  once  fixed,  his  small  face,  pale 
with  thought,  contrasting  remarkably  with  the  other  two; 
these  men  absorbed  in  what  they  are  listening  to,  thinking 
neither  of  themselves  nor  of  each  other,  while  they  are 
watched  by  the  groups  of  idlers  and  listeners  around  them; 
the  newspaper  corps,  the  dark  Cherokee  chiefs,  the  strag- 
glers from  the  far  West,  the  gay  ladies  in  their  waving 
plumes,  and  the  members  of  either  House  that  have  stepped 
in  to  listen;  all  these  I  have  seen  constitute  one  silent 
assemblage,  while  the  mild  voice  of  the  aged  Chief  Justice 
sounded  through  the  court.  .  .  .  How  delighted  we  were 
to  see  Judge  Story  bring  in  the  tall,  majestic,  bright-eyed, 
old  man  (the  Chief  Justice),  old  by  chronology,  by  the 
lines  on  his  composed  face,  and  by  his  services  to  the  repub- 
h*c;  but  so  dignified,  so  fresh,  so  present  to  the  time,  that 
no  feeling  of  compassionate  consideration  for  age  dared  to 
mix  with  contemplation  of  him." 

Another  vivid  contemporaneous  description  of  Chief 
Justice  Marshall  at  the  time,  is  found  in  a  letter  of  the  in- 
structor, George  Bancroft,  written  December  23,  1832: 

"We  went  to  call  upon  Judge  Story,  and  we  found 
there  Judge  Baldwin  and  Chief  Justice  Marshall.  I  drew 
my  chair  up  to  the  latter,  nor  can  you  readily  conceive 
of  the  great  suavity,  or  rather  calmness  of  manner,  by 
which  he  is  distinguished.     In  conversation  he  makes  no 


THE  FEDERAL  BAR  AND  LAW,   1 830-1  S6o         417 

display,  nor  is  he  remarkable  except  for  this  venerable 
coolness  of  manner.  There  are  about  him  no  marks  of 
genius;  but  in  his  entire  collectedness,  great  precision  and 
calm  uniformity,  you  may  discern  the  signs  of  an  unerring 
judgment.  He  is  by  all  acknowledged  to  stand  foremost 
on  the  bench  of  the  Supreme  Court  —  a  first  rate  man 
in  the  first  class  of  greatness.  He  has  travelled  very  Httle; 
has  not  been  in  New  England  since  the  War;  has  hardly 
seen  New  York,  but  has  lived  in  the  regular  exercise  of 
his  judicial  functions,  unencumbered  by  any  care  other 
than  that  of  giving  character  and  respectability  to  the 
bench  over  which  he  presides."  ^ 

It  is  interesting  to  compare  this  picture  with  that  por- 
trayed by  George  Ticknor,  seventeen  years  prior,  who 
wrote  on  February  i,  1815,  as  follows: 

"You  will  expect  from  me  some  account  of  the  Chief 
Justice  of  the  United  States,  the  first  lawyer  —  if  not, 
indeed,  the  first  man  —  in  the  country.  You  must,  then, 
imagine  before  you  a  man  who  is  tall  to  awkwardness,  with 
a  large  head  of  hair,  which  looked  as  if  it  had  not  been 
lately  tied  or  combed,  and  with  dirty  boots.  You  must 
imagine  him,  too,  with  a  strangeness  in  his  manners  which 
arises  neither  from  awkwardness  nor  formality,  but  seems 
to  be  a  curious  compound  of  both;  and  then,  perhaps, 
you  will  have  before  you  a  figure  something  like  that  of 
the  Chief  Justice.  His  style  and  tones  in  conversation 
are  uncommonly  mild,  gentle, -and  conciliatory;  and  before 
I  had  been  with  him  half  an  hour,  I  had  forgotten  the 
carelessness  of  his  dress  and  person,  and  observed  only 
the  quick  intelligence  of  his  eye  and  the  open  interest  he 
discovered  in  the  subjects  on  which  he  spoke,  by  the  per- 
petual variations  of  his  countenance."  ^ 

In  view  of  the  close  connection  between  the  decisions 
of  the  Supreme  Court  and  the  political  question  then  most 
alive  —  State  Sovereignty  —  it  is  interesting  to  note  that 

^  Life  and  Letters  of  George  Bancroft,  by  M.  A.  DeW.  Howe  (1908). 
'  Life  and  Letters  and  Journals  of  George  Ticknor  (1876). 


4i8  A  HISTORY  OF  THE  AMERICAN  BAR 

in  1833  Judge  Story  published  his  Commentaries  on  the 
Constitution  of  the  United  States  —  the  first  adequate  work 
on  that  great  branch  of  law.  Its  especial  value  and  ap- 
propriateness at  the  particular  crisis  in  national  poHtics  — 
the  Nullification  Ordinance  of  South  Carolina  having  been 
passed  November  24,  1832,  and  President  Jackson's  strong 
Union  proclamation  issued  in  December  —  was  noticed  in 
a  review  by  Edward  Everett  in  the  North  American  Review} 

"Its  peculiar  seasonableness  at  the  present  time  gives 
Mr.  Justice  Story's  work  a  value,  which  no  work  could 
have  possessed  under  different  circumstances.  Consti- 
tutional law  in  our  day,  instead  of  being  the  calm  occupa- 
tion of  the  schools  or  the  curious  pursuit  of  the  professional 
student,  has  become  —  as  it  were  —  an  element  of  real 
life.  The  Constitution  has  been  obliged  to  leave  its  temple 
and  come  down  into  the  forum  and  traverse  the  streets." 

The  winter  of  1833-1834  in  Washington  was  marked  in 
legal  annals  by  the  death  of  Wilham  Wirt,  on  February  18, 
1834,  and  by  the  appointment  of  Roger  B.  Taney  of  Balti- 
more (Wirt's  successor  as  Attorney- General  of  the  United 
States  under  Jackson,  and  at  that  time  Secretary  of  the 
Treasury)  to  the  Supreme  Bench,  in  place  of  Gabriel 
Duvall  who  had  resigned.  The  appointment,  however, 
was  refused  confirmation  by  the  Senate. 

A  vivid  glimpse  of  the  Bar  of  the  Supreme  Court  at  this 
time  is  given  in  a  letter  from  Charles  Sumner  to  Professor 
Simon  Greenleaf,  March  3,  1834: 

"Mr.  Francis  Scott  Key  is  now  speaking  in  the  Supreme 
Court  where  I  write  these  lines.  The  case  before  the  Court 
is  an  important  one,  between  Amos  Binney  and  the  Chesa- 
peake Canal  (8  Peters,  201)  —  Key,  Walter  Jones  and 
Webster  on  one  side,  and  Coxe  and  Swann  on  the  other. 
Key  has  not  prepared  himself,  and  now  speaks  from  his 

'  North  American  Review  (January,  1837). 


THE  FEDERAL  BAR  AND  LAW,  183&-1860         419 

preparation  on  the  trial  below,  relying  upon  a  quickness 
and  facility  of  language,  rather  than  upon  research,  Walter 
Jones  —  a  man  of  acknowledged  powers  in  the  law,  unsur- 
passed, if  not  unequalled  by  any  lawyers  in  the  country  — 
is  in  the  same  plight.  He  is  now  conning  his  papers  and 
maturing  his  points  —  a  labor  which  of  course  he  should 
have  gone  through,  before  he  entered  the  court  room. 
And  our  Webster  fills  up  the  remiss  triumvirate.  He, 
like  Jones,  is  doing  the  labor  in  court  which  should  have 
been  done  out  of  court.  In  fact,  politics  has  entirely 
swamped  his  whole  time  and  talents.  All  here  declare  that 
he  has  neglected  his  cases  this  term  in  a  remarkable  man- 
ner. It  is  now  whispered  in  the  room  that  he  has  not  looked 
at  the  present  case,  though  the  amount  at  stake  is  esti- 
mated at  half  a  million  of  dollars. 

"The  insurance  case  {Hazard  v.  N.  E.  Mar.  Ins.  Co., 
8  Peters,  557,  i  Sumner,  218),  argued  by  Sclden  of  New 
York,  at  Boston  last  year  before  Judge  Story,  has  been 
argued  here,  since  my  being  in  town,  by  Selden  on  one 
side  and  Charles  G.  Loring  and  Webster  on  the  other  side. 
It  was  Loring's  first  appearance  in  the  Supreme  Court, 
and  he  acquitted  himself  honorably  .  .  .  was  very  clear 
and  full,  delivering  his  arguments  in  a  calm,  undisturbed 
manner,  which  was  a  beautiful  contrast  to  the  rhetorical, 
excited,  disturbed,  tinselled  manner  of  Selden,  who  spoke 
as  if  addressing  his  constituents  at  the  Park  or  at  Tam- 
many Hall.  .  .  .  We  expect  a  very  interesting  case  — 
Wheaton  v.  Peters  (8  Peters,  591)  —  an  action  brought  by 
Wheaton  (the  old  reporter)  against  Peters  for  publishing 
\nhi'=> Condensed Reportst\iQ.tv7e\vQvo\\iJXvesoiWhcaton.  .  .  . 
John  Sergeant  is  Peters'  counsel,  and  Webster,  Wheaton's. 
Franklin  Dexter  made  an  argument  here  a  few  days  before 
I  came,  which  gained  him  a  good  reputation  {Carrington 
V.  Merchants  Ins.  Co.,  8  Peters,  495).  .  .  .  Judge  Story 
has  shown  me  immense  kindness." 


On  July  6,  1835,  Chief  Justice  Marshall  died  at  the  age 
of  eighty,  having  seen  during  his  lifetime  the  firm  estab- 
lishment of  most  of  the  fundamental  doctrines  of  American 


420  A  HISTORY  OF  THE  AMERICAN  BAR 

constitutional  and  international  law  as  applied  by  the 
courts  of  the  country.  Of  Marshall's  creative  part,  men- 
tion has  already  been  made.  How  great  was  his  physical 
share  of  the  work  may  be  judged  from  the  following  figures. 
Between  1790  and  1801,  there  had  been  only  six  constitu- 
tional questions  involved  in  cases  before  the  Supreme 
Court.  Between  1801  and  1835  there  were  62  decisions 
involving  such  questions,  in  36  of  which  Marshall  wrote 
the  opinion.  Of  a  total  of  1,215  cases  during  that  period, 
in  94  no  opinions  were  filed;  in  15,  the  decision  was  ''by 
the  court;"  and  in  the  remaining,  1,106  cases  Marshall 
delivered  the  opinion  in  519.^ 

In  the  same  period,  there  were  195  cases  involving  ques- 
tions of  international  law,  or  in  some  way  affecting  in- 
ternational relations.  In  80  of  these,  the  opinion  was 
delivered  by  Marshall;  in  37,  by  Story;  28,  by  Johnson; 
19,  by  Washington;  14,  by  Livingston;  5,  by  Thompson; 
and  I  each  by  Baldwin,  Gushing  and  Duvall;  in  8,  "by 
the  court."  ^ 

The  legal  profession  in  general  looked  forward  to  the 
appointment  of  Judge  Joseph  Story  as  Marshall's  suc- 
cessor. But  "the  school  of  Story  and  Kent,"  to  use  Jack- 
son's phrase,  could  expect  no  favors  at  the  hands  of  the 
President,  for  their  political  and  constitutional  views 
differed  far  too  widely;  and  as  Story  wrote:  "Whoever 
succeeds  Marshall  will  have  a  most  painful  and  discourag- 
ing duty.  He  will  follow  a  man  who  cannot  be  equalled, 
and  all  the  public  will  see  or  think  they  see  the  difference. 
...  I  take  it  for  granted  that  all  of  us  who  are  on  the 
bench  are  hors  de  combat.'^ 

^  The  Development  of  the  Constitution  as  Influenced  by  Chief  Justice  Mar- 
shall,  by  Henry  Hitchcock  (1889). 

2  Address  by  John  Bassett  Moore  before  the  Delaware  State  Bar  Asso- 
ciation, Feb.  5,  1901. 


THt:  FEDERAL  BAR  AND  LAW,   1830-1860         421 

John  Quincy  Adams,  in  his  Diary,  July  10,  1835,  thus 
described  the  situation  from  his  peculiar  standpoint: 

"John  Marshall  died  at  Philadelphia  last  Monday. 
He  was  one  of  the  most  eminent  men  that  this  country 
has  ever  produced  —  a  Federalist  of  the  Washington 
School.  The  Associate  Judges  from  the  time  of  his  ap- 
pointment have  generally  been  taken  from  the  Demo- 
cratic or  Jeflersonian  party.  Not  one  of  them,  excepting 
Story,  has  been  a  man  of  great  ability.  Several  of  them 
have  been  men  of  strong  prejudices,  warm  passions,  and 
contracted  minds;  one  of  them  occasionally  insane.  Mar- 
shall, by  the  ascendency  of  his  genius,  by  the  amenity  of 
his  deportment,  and  by  the  imperturbable  command  of  his 
temper,  has  given  a  permanent  and  systematic  character 
to  the  decisions  of  the  Court,  and  settled  many  great  con- 
stitutional questions  favorably  to  the  continuance  of  the 
Union.  Marshall  has  cemented  the  Union  which  the  crafty 
and  quLxotic  democracy  of  Jefferson  had  a  perpetual  ten- 
dency to  dissolve.  Jefferson  hated  and  dreaded  him.  It 
is  much  to  be  feared  that  a  successor  will  be  appointed 
of  a  very  different  character.  The  President  of  the  United 
States  now  in  office,  has  already  appointed  three  Judges 
of  the  Supreme  Court;  with  the  next  appointment  he 
will  have  constituted  the  Chief  Justice  and  a  majority  of 
of  the  Court.  He  has  not  yet  made  one  good  appointment. 
His  Chief  Justice  will  be  no  better  than  the  rest." 

President  Jackson  waited  six  months,  and  then,  to  the 
surprise  of  most  of  the  Bar,  appointed  Roger  B.  Taney  of 
Maryland  as  Marshall's  successor,  in  December,  1835. 
The  impression  produced  at  the  time  by  this  appointment 
was  well  described  by  Ex-Judge  Benjamin  R.  Curtis  in 
his  address  on  the  death  of  Taney,  before  the  Bar  of  the 
First  Circuit  Court  of  the  United  States,  in  Boston,  October 
17,  1864: 

"I  have  been  long  enough  at  the  Bar  to  remember  I\Ir. 
Taney's  appointment;   and  I  believe  it  was  then  a  general 


422  A  HISTORY  OF  THE  AMERICAN  BAR 

impression  in  this  part  of  the  country  that  he  was  neither 
a  learned  nor  a  profound  lawyer.  This  was  certainly  a 
mistake.  His  mind  was  thoroughly  imbued  with  the 
rules  of  the  common  law  and  of  equity  law;  and  when  I 
first  knew  him,  he  was  master  of  all  that  peculiar  juris- 
prudence which  it  is  the  special  province  of  the  courts  of 
the  United  States  to  administer  and  apply.  His  skill  in 
applying  it  was  of  the  highest  order.  His  power  of  subtle 
analysis  exceeded  that  of  any  man  I  ever  knew  ...  in  his 
case  balanced  and  checked  by  excellent  common  sense 
and  by  great  experience  in  practical  business,  both  public 
and  private. 

"It  is  certainly  true,  and  I  am  happy  to  be  able  to  bear 
direct  testimony  to  it,  that  the  surpassing  ability  of  the 
Chief  Justice,  and  all  the  great  quaHties  of  character  and 
mind,  were  more  fully  and  constantly  exhibited  in  the  con- 
sultation room,  while  presiding  over  and  assisting  the 
dehberation  of  his  brethren  than  the  pubHc  knew  or  can 
ever  justly  estimate.  .  .  .  There,  his  dignity,  his  love  of 
order,  his  gentleness,  his  discrimination,  were  of  incalcu- 
lable importance.  The  real  intrinsic  character  of  the  tri- 
bunal was  greatly  influenced  by  them,  and  always  for 
the  better." 

After  the  accession  of  Chief  Justice  Taney  to  the  Bench, 
in  1836,  the  decisions  of  the  Supreme  Court  showed  a  de- 
cided reaction  from  the  centralizing  views  of  Marshall. 
This  was  first  seen  in  three  cases  in  1837,  in  each  of  which 
a  State  statute  alleged  to  be  in  violation  of  the  Federal 
Constitution  was  upheld. 

In  Mayor  of  the  City  of  New  York  v.  Miln  (11  Peters,  102), 
argued  by  D.  B.  Ogden  against  Walter  Jones,  a  New  York 
statute  relative  to  the  duty  of  masters  of  vessels  to  report 
all  passengers  arriving,  was  held  constitutional,  as  not 
being  a  regulation  of  interstate  commerce.  In  Briscoe  v. 
Ba7ik  of  the  Commonwealth  of  Kentucky  (11  Peters,  257), 
argued  by  White  and  Southard  against  Henry  Clay  and 
Benjamin  Hardin,   the  Court  reached  a  conclusion  up- 


THE  FEDERAL  BAR  AND  LAW,   1830-1860         423 

holding  a  Kentucky  statute,  directly  in  conflict  with  Mar- 
shall's opinion  in  Craig  v.  Missouri  (4  Peters,  410),  decided 
in  1830. 

In  Charles  River  Bridge  v.  Warren  Bridge  (11  Peters, 
420),  a  Massachusetts  statute  alleged  to  constitute  an 
impairment  of  contract  was  held  to  be  constitutional. 
This  latter  case  had  been  argued  for  the  first  time  as  far 
back  as  183 1  by  Daniel  Webster  and  Warren  Button 
against  Walter  Jones  and  William  Wirt;  and  Niles^  Register, 
March  26,  183 1,  had  thus  referred  to  it: 

"It  was  a  war  of  giants.  It  was  Mr.  Button's  first 
essay  in  this  court,  and  is  spoken  of  in  terms  of  high  com- 
mendation —  as  impressive,  logical,  classical.  Mr.  Jones 
is  well  known  to  the  public  as  one  of  the  ablest  advocates. 
Of  Messrs.  Webster  and  Wirt,  it  is  needless  to  say  a  word 
except  that  they  displayed  the  utmost  of  their  mighty 
powers." 

Owing  to  illness  and  absence  of  Judges  and  vacancies  in 
the  Court,  the  case  had  been  continued  from  term  to  term ; 
for,  as  Chief  Justice  Marshall  stated  in  1834:  "The  prac- 
tice of  this  Court  is  not  (except  in  cases  of  absolute  neces- 
sity) to  deliver  any  judgment  in  cases  where  constitutional 
questions  are  involved  imless  four  Judges  concur  in  opinion, 
thus  making  the  decision  that  of  a  majority  of  the  whole 
Court." 

The  second  argument  of  the  case,  in  1837,  by  Webster 
and  Button  against  Simon  Greenleaf  (who  took  Wirt's 
place  after  the  latter's  death)  and  John  Bavis  of  Massa- 
chusetts, is  vividly  described  by  Greenleaf  in  a  letter  to 
Charles  Sumner,  January  24,  1837: ' 

"For  a  week  I  have  had  scarcely  a  thought  that  was  not 
upon  Warren  Bridge.  The  argument  was  begun  Thursday 
by   Mr.   Button,   who   concluded   Saturday  morning.     I 

>  See  letter  in  the  Sumner  Papers  in  Harvard  College  Library. 


424  A  HISTORY  OF  THE  AMERICAN  BAR 

spoke  about  two  hours  on  Saturday  and  nearly  three  on 
IMonday,  and  yet  merely  went  straight  over  my  brief, 
answering,  by  the  way,  a  few  objections  on  the  other  side. 
Mr.  Davis  followed  me  yesterday  and  concluded  in  three 
hours  to-day,  in  a  most  cogent,  close,  clear  and  convincing 
argument.  Peters  the  Supreme  Court  Reporter  says  the 
cause  was  not  nearly  as  well  argued  before  as  now;  and 
in  proof  of  it  says  that  his  own  opinion  is  changed  by  it 
and  that  he  now  goes  for  the  Def 'ts!  Mr.  Webster  spoke 
about  an  hour  this  afternoon  on  general  and  miscellaneous 
topics  in  the  cause,  and  will  probably  occupy  all  day  to- 
morrow, as  he  said  he  should  consume  considerable  time. 
He  told  us  he  should  'tear  our  arguments  to  pieces,'  and 
abuse  me.  The  former  will  puzzle  him ;  the  latter  I  doubt 
not  he  will  do,  as  he  was  observed  to  be  very  uneasy  and 
moody  during  the  whole  defense.  Both  Mr.  Davis  and  I 
avoided  everything  'peopUsh'  in  our  remarks,  confining 
ourselves  closely  to  legal  views  alone.  But  we  expect  a 
great  effort  from  Mr.  W.  to-morrow. 

"It  causes  me  much  uneasiness  to  be  absent  from  the 
Law  School  so  long ;  but  I  was  delighted  to  learn  from  your 
letter  to  the  Judge  that  things  go  on  so  well.  They  are 
capital  fellows,  and  possess  a  large  share  of  my  affections. 

"Present  to  them  my  hearty  love  and  good  will,  and  tell 
them  I  hope  to  see  them  all  next  week.  .  .  .  Had  Judge 
Wayne  been  here  at  the  opening  of  the  Court,  I  should 
have  been  on  my  return  as  early  within  a  day  as  I  antici- 
pated before  I  left  home." 

Judge  Story  wrote  to  Sumner,  January  25,  1837: 

"Every  argument  was  very  good,  above  and  beyond 
expectation,  and  that  is  truly  no  sHght  praise,  considering 
all  circumstances.  Our  friend  Greenleaf's  argument  was 
excellent  —  full  of  abiUty,  point,  learning,  condensed 
thought,  and  strong  illustration  —  delivered  with  great 
presence  of  mind,  modestly,  calmly,  and  resolutely.  It 
was  every  way  worthy  of  him  and  the  cause.  It  has  given 
him  a  high  character  with  the  Bench  and  with  the  Bar,  and 
placed  him  in  public  opinion  exactly  where  you  and  I  could 
wish  him  to  be,  among  the  most  honored  of  the  profession. 


THE  FEDERAL  BAR  AND  LAW,   1830-1860         425 

He  has  given  Dane  College  new  cdat,  sounding  and  re- 
sounding fame;  I  speak  this  unhesitatingly.  But  at  the 
same  time  I  do  not  say  that  he  will  win  the  cause.  That 
is  uncertain  yet,  will  not  probably  be  decided  under  weeks 
to  come.  I  say  so  the  more  resolutely  because  on  some 
points  he  did  not  convince  me;  but  I  felt  the  force  of  his 
argument.  Governor  Davis  made  a  sound  argument, 
exhibiting  a  great  deal  of  acuteness  and  power  of  thinking. 
Dutton's  argument  was  strong,  clear,  pointed,  and  replete 
with  learning.  Webster's  closing  reply  was  in  his  best 
manner,  but  with  a  little  too  much  of  fierte  here  and  there. 
He  had  manifestly  studied  it  with  great  care  and  sobriety 
of  spirit.  On  the  whole  it  was  a  glorious  exhibition  for 
old  Massachusetts;  four  of  her  leading  men  brought  out 
in  the  same  cause,  and  none  of  them  inferior  to  those  who 
are  accustomed  to  the  lead  here.  The  audience  was  very 
large,  especially  as  the  cause  advanced ;  —  a  large  circle 
of  ladies,  of  the  highest  fashion,  and  taste,  and  intelUgence, 
numerous  lawyers,  and  gentlemen  of  both  houses  of  Con- 
gress, and  towards  the  close,  the  foreign  ministers,  or  at 
least  some  two  or  three  of  them. 

*'The  Judges  go  on  quite  harmoniously.  The  new 
Chief  Justice  conducts  liimself  with  great  urbanity  and 
propriety.  Judge  Barbour  is  a  very  conscientious  and 
painstaking  Judge,  and  I  think  will  improve  as  he  goes 
on.  .  .  .  Greenleaf  departs  to-morrow  morning,  but  he 
leaves  a  high  repute  behind.  I  feel  a  sort  of  homesick- 
ness in  parting  with  him,  though  I  have  seen  less  of  him 
here  than  I  should  at  home." 

Chief  Justice  Taney  delivered  the  opinion  of  the  Court 
in  favor  of  Greenleaf's  chent,  and  upholding  the  right  of 
the  State  to  incorporate  a  new  bridge  paralleling  an  old 
bridge,  in  spite  of  the  latter's  prior  charter.  The  decision 
that  "in  the  absence  of  express  words  in  a  charter  giving 
exclusive  privileges,  no  such  grant  can  be  inferred  as  against 
the  State"  was  undoubtedly  influenced  by  the  economic 
condition  of  the  times.  It  is  to  be  recalled  that  railroads 
had  been  in  existence  for  only  half  a  dozen  years,  and 


426  A  HISTORY  OF  THE  MIERICAN  BAR 

the  effect  of  a  contrary  decision  upon  these  new  projects 
might  have  been  disastrous.  For,  as  Taney  pointed 
out: 

"Let  it  once  be  understood  that  such  charters  carry 
with  them  these  impHed  contracts,  and  give  this  unknown 
and  imdefined  property  in  a  Une  of  travelling,  and  you  will 
soon  find  the  old  turnpike  corporations  awakening  from 
their  sleep,  and  calling  upon  this  Court  to  put  down  the 
improvements  which  have  taken  their  place.  The  millions 
of  property  which  have  been  invested  in  railroads  and 
canals,  upon  Hnes  of  travel  which  had  been  before  occupied 
by  turnpike  corporations,  will  be  put  in  jeopardy.  We  shall 
be  thrown  back  to  the  improvements  of  the  last  century, 
and  obUged  to  stand  still,  until  the  claims  of  the  old  turn- 
pike corporations  shall  be  satisfied,  and  they  shall  consent 
to  permit  these  States  to  avail  themselves  of  the  Ughts  of 
modern  science,  and  to  partake  of  the  benefit  of  those  im- 
provements which  are  now  adding  to  the  wealth  and  pros- 
perity and  the  convenience  and  comfort  of  every  other  part 
of  the  civilized  world." 

The  decision  met  with  great  disapproval  in  many  quarters, 
and  Ex-Chancellor  James  Kent  wrote  to  Judge  Story  (who 
dissented),  June  23,  1837: 

"I  have  re-perused  the  Charles  River  Bridge  case,  and 
with  increased  disgust.  It  abandons,  or  overthrows,  a 
great  principle  of  constitutional  morality,  and  I  think 
goes  to  destroy  the  security  and  value  of  legislative  fran- 
chises. It  injures  the  moral  sense  of  the  community,  and 
destroys  the  sanctity  of  contracts.  If  the  Legislature  can 
quibble  away,  or  whattle  away  its  contracts  with  impunity, 
the  people  will  be  sure  to  follow.  Quidquid  delirant  reges 
plectuntur  Achivi.  I  abhor  the  doctrine  that  the  Legislature 
is  not  bound  by  every  thing  that  is  necessarily  impUed  in 
a  contract,  in  order  to  give  it  effect  and  value,  and  by 
nothing  that  is  not  expressed  in  hac  verba,  that  one  rule  of 
interpretation  is  to  be  applied  to  their  engagements,  and 
another  rule  to  the  contracts  of  individuals.  ..." 


THE  FEDERAL  BAR  AND  LAW,   1830-1860         427 

Judge  Story,  in  his  dissenting  opinion,  referred  to  the 
fact  that  Chief  Justice  Marshall,  who  had  heard  the  first 
argument  in  each  of  these  three  cases,  the  Miln  and  the 
Briscoe  cases  in  1834  and  the  Charles  River  Bridge  case  in 
183 1,  had  agreed  ^^dth  him  in  beheving  all  the  statutes 
involved  to  be  unconstitutional. 

So  great  was  Story's  despondency  over  the  new  trend 
of  the  Court  under  Taney,  that  in  a  letter  to  Judge  McLean, 
May  10,  1837,  he  said: 

"The  opinion  delivered  by  the  Chief  Justice  in  the 
Bridge  Case  has  not  been  deemed  satisfactory;  and,  indeed, 
I  think  I  may  say  that  a  great  majority  of  our  ablest  lawyers 
are  against  the  decision  of  the  Court;  and  those  who  think 
otherwise  are  not  content  with  the  views  taken  by  the 
Chief  Justice. 

"  There  will  not,  I  fear,  ever  in  our  day,  be  any  case  in 
which  a  law  of  a  State  or  of  Congress  will  be  declared  un- 
constitutional ;  for  the  old  constitutional  doctrines  are  fast 
fading  away,  and  a  change  has  come  over  the  public  mind, 
from  which  I  augur  Httle  good.  Indeed,  on  my  return 
home,  I  came  to  the  conclusion  to  resign." 

A  writer  in  the  North  American  Review  in  1838,  also 
uttered  the  same  doleful  forebodings  in  reviewing  volume 
eleven  of  Peters'  Report:  ^ 

"The  volume  is  one  of  unusual  and  in  certain  respects 
even  of  singular  interest.  ...  It  can  hardly  have  failed 
to  strike  the  dullest  observation  after  a  survey  of  the  present 
volume,  that  some  considerable  change  has  come  over  the 
spirit  of  our  Supreme  National  Judicature  upon  this  great 
class  of  [constitutional]  questions.  .  .  .  The  prospect  is 
charged,  perhaps,  to  our  too  anxious  apprehension,  with 
shades  which  have  not  hitherto  seemed  to  rest  upon  it  .  .  . 
under  the  shape,  not  to  say  pretext,  of  internal  regulations 

>  See  Constitutional  Law,  a  Renew  of  XI  Peters,  in  North  Amer.  Rev., 
Vol.  XLVI  January,  1838). 


428  A  HISTORY  OF  THE  AMERICAN  BAR 

of  police  of  the  protective  kind  on  the  maritime  side  of 
commerical  States.  .  .  . 

"Massachusetts  also,  we  are  sorry  to  say,  fmiiished 
her  contribution  to  swell  the  present  volume.  We  say  this 
with  sorrow,  because  whatever  may  be  thought  of  the 
merits  of  the  question,  it  is  undeniable  that  the  tone  and 
character  of  the  decision  chime  in  with  doctrines  which 
tend,  or  may  be  urged,  deplorably,  to  the  subversion  of 
the  principles  of  law  and  property. 

"  What  was  the  law  of  the  Court  upon  some  important 
points  remains  so  no  longer.  Within  a  brief  space  we  have 
seen  the  highest  judicial  corps  of  the  Union  wheel  about 
in  almost  solid  column  and  retread  some  of  its  most  im- 
portant steps. 

"It  is  quite  obvious  that  old  things  are  passing  away. 
The  authority  of  former  decisions  which  had  long  been 
set  as  landmarks  in  the  law  is  assailed  and  overthrown  by 
a  steady,  destructive  aim  from  the  summit  of  that  strong- 
hold, within  which  they  had  been  entrenched  and  estab- 
lished. 

".  .  .  It  is  very  remarkable  also  that  all  the  principles 
yielded  by  these  decisions  either  have  relation  to  the  sov- 
ereign powers  of  the  Union  or  to  the  very  essence  of  social 
obligation.  .  .  .  We  can  hardly  avoid  the  reluctant  im- 
pression that  it  (the  judiciary)  has  already  capitulated 
to  the  spirit  of  the  old  confederation;  and  that  we  are  fast 
returning,  among  other  things,  to  an  old  continental  cur- 
rency, and  to  what  were  once  denominated,  moreover, 
anti-federal  doctrines. 

"  Under  the  progressive  genius  of  this  new  judicial  admin- 
istration we  can  see  the  whole  fair  system  of  the  Constitution 
beginning  to  dissolve  like  the  baseless  fabric  of  a  vision." 

While  the  doctrine  of  State  Sovereignty  was  upheld  in 
these  cases,  succeeding  cases  soon  dissipated  the  view  that 
in  Taney  the  States'  Rights  men  would  find  a  firm  adherent. 
No  Judge  —  not  even  Marshall  himself  —  did  more  to 
place  the  Federal  courts  in  a  position  of  power  and  dignity 
than  Taney,  by  his  later  decisions  on  the  rights  of  corpora- 


THE  FEDERAL  BAR  AND  LAW,  1830-1860         429 

tions  to  sue  and  to  be  sued  in  Federal  courts  and  to  do 
business  in  States  outside  those  of  their  incorporation, 
and  by  his  decisions  on  the  extent  of  the  admiralty 
jurisdiction. 

In  1838,  the  only  notable  case  before  the  Supreme  Court 
was  Rhode  Island  v.  Massachusetts  (12  Peters,  657),  argued 
by  Daniel  Webster  and  James  T.  Austin,  Attorney-General 
of  Massachusetts,  against  Hazard  and  Southard  of  Rhode 
Island.  The  Court  held  that  it  had  jurisdiction  over 
boundary  disputes  between  States,  thus  again  affirming 
the  supremacy  of  the  Federal  jurisdiction. 

The  session  of  the  Supreme  Court  in  1839  was  marked 
by  the  decision  of  the  great  case  of  Bank  of  Augusta  v. 
Earle  (13  Peters,  519),  which  was  argued  by  D.  B.  Ogden, 
Sergeant  and  Webster,  against  C.  J.  Ingersoll  and  Van  de 
Graff,  and  which  was  the  first  case  establishing  the  right 
of  a  corporation  to  do  business  outside  the  State  of  its 
incorporation. 

The  year  1840  was  marked  as  the  first  year  in  which  a 
railroad  appeared  before  the  Court  as  party  in  any  suit. 
The  Philadelphia  and  Trenton  Railroad  Co.  v.  Simpson 
(14  Peters,  448). 

The  year  1841  was  notable  for  two  celebrated  cases. 
The  first,  Groves  v.  Slaughter  (15  Peters,  449),  involving 
the  Mississippi  statute  proliibiting  the  introduction  into 
the  State  of  slaves  as  merchandise  for  sale,  and  afi"ecting 
upwards  of  $3,000,000  of  property,  was  argued  by  Henry 
D.  Gilpin  and  Robert  J.  Walker,  against  Walter  Jones, 
Henr>'  Clay,  and  Daniel  Webster.  The  second,  U.  S.  v. 
Amistad  (15  Peters,  518),  in  which  Judge  Story  delivered 
one  of  his  most  celebrated  opinions,  was  of  peculiar  in- 
terest, because  of  the  appearance  for  the  defendant  of 
John  Quincy  Adams,  then  seventy-four  years  of  age  and 
whose  last  engagement  as  counsel  before  the  Court  had 


430  A  HISTORY  OF  THE  AMERICAN  BAR 

been  in  1809,  thirty-two  years  before,  in  Hope  Insurance 
Co.  V.  Boardman  (5  Cranch,  56). 

The  case  involved  the  freedom  of  certain  negroes  who, 
while  being  brought  to  this  country  illegally  by  slave 
traders,  had  gained  mastery  of  the  vessel  and  murdered 
the  officers.  Having  been  taken  together  with  the  vessel 
into  a  United  States  port  by  a  United  States  war  vessel, 
they  were  claimed  as  slaves  by  their  alleged  Spanish 
owners.  Much  political  feeling  was  aroused  by  this  case, 
and  Adams,  in  his  Diary,  thus  describes  his  argument:  ^ 

"Feb.  24.  The  court  room  was  full  but  not  crowded, 
and  there  were  not  many  ladies.  I  had  been  deeply  dis- 
tressed and  agitated  till  the  moment  when  I  rose,  and  then 
my  spirit  did  not  sink  within  me.  With  grateful  heart 
for  aid  from  above,  though  in  humiliation  for  the  weakness 
incident  to  the  limits  of  my  powers,  I  spoke  for  4M  hours 
with  sufficient  method  and  order  to  witness  little  flagging 
of  attention  by  the  Judges  or  the  auditors.  .  .  .  The 
structure  of  my  argument  was  perfectly  simple  and  com- 
prehensive, needing  no  artificial  division  into  distinct 
points,  but  admitting  the  steady  and  undeviating  pursuit 
of  one  fundamental  principle,  the  ministration  of  justice. 
I  then  assigned  my  reason  for  inviting  justice  specially, 
aware  that  this  was  always  the  duty  of  the  court,  but 
because  an  immense  array  of  power  —  the  Executive  Ad- 
ministration, instigated  by  the  minister  of  a  foreign  nation 
—  had  been  brought  to  bear  in  this  case  on  the  side  of  in- 
justice. ...  I  did  not,  I  could  not,  answer  public  expec- 
tation; but  I  have  not  yet  utterly  failed.  God  speed  me 
to  the  end." 

Judge  Story  writing  to  his  wife,  February  28,  1841,  de- 
scribed the  old  man  as  full  of  his  accustomed  virility  and 
belligerency,  and  speaks  of  the  "extraordinary"  argiunent 
made  by  him  —  "extraordinary,  I  say,  for  its  power,  for 

1  Still  more  interesting  is  Adams'  full  account  as  to  his  retainer  and  of 
the  progress  of  the  case.    See  Diary  of  John  Quincy  Adams,  Vol.  X. 


THE  FEDERAL  BAR  AND  LAW,   1 830-1 860         431 

its  bitter  sarcasm,  and  its  dealing  with  topics  far  beyond 
the  record  and  points  of  discussion." 

The  January  term  of  the  Supreme  Court  in  1842  was 
notable  for  the  rendering  by  Judge  Story  of  two  of  his 
most  famous  opinions.  In  the  case  of  Prigg  v.  Pennsyl- 
vania (16  Peters,  539),  he  held  that  the  Federal  Fugitive 
Slave  Act  of  1793  was  constitutional;  that  Congress  had 
exclusive  power  under  the  Constitution  to  legislate  re- 
garding fugitive  slaves,  and  that  the  Fugitive  Slave  statute 
of  Pennsylvania  was  unconstitutional.^  This  year  marked 
the  beginning  of  the  Free  Soil  party;  and  by  those  up- 
holding its  views,  the  decision  in  the  Prigg  case  was  re- 
garded as  a  direct  surrender  to  the  South  and  Southern 
principles.  The  attacks  on  Story  were,  however,  entirely 
unwarranted;   for  no  man  was  more  sincere  in  his  opposi- 

1  See  Com.  v.  Tracy,  $  Mete.  1843,  construing  the  opinions  in  this  case. 
John  Quincy  Adams  wrote  in  his  Diary  under  date  of  March  10,  1843: 
"I  spent  much  of  this  day  in  transiently  reading  the  report  of  the  trial 
in  the  Supreme  Court  of  the  United  States  of  the  case  of  Edward  Prigg,  against 
the  Commonwealth  of  Pennsylvania,  otherwise  called  the  Fugitive  Slave  case 

—  seven  judges,  every  one  of  them  dissenting  from  the  reasoning  of  all  the 
rest,  and  every  one  of  them  coming  to  the  same  conclusion  —  the  tran- 
scendant  omnipotence  of  slavery  in  these  United  States,  riveted  by  a  claose 
in  the  Constitution." 

George  Ticknor  wrote  to  William  Ellery  Channing,  April  20,  1842: 
"On  the  subject  of  our  relations  with  the  South  and  its  slavery,  we  must, 

—  as  I  have  always  thought  —  do  one  of  two  things;  either  keep  honestly 
the  bargain  of  the  Constitution  as  it  shall  be  interpreted  by  the  authorities 

—  of  which  the  Supreme  Court  of  the  United  States  is  the  chief  and  safest 

—  or  declare  honestly  that  we  can  no  longer  in  our  conscience  consent  to 
keep  it,  and  break  it.  I  therefore  rejoice  at  every  legal  decision  which  limits 
and  restrains  the  curse  of  slavery;  both  because  each  such  restriction  is  in 
itself  so  great  a  good,  and  because  it  makes  it  more  easy  to  preserve  the 
Union.  I  fear  the  recent  decision  in  the  case  of  Pennsylvania  and  Mary- 
land works  the  other  way,  but  hope  it  will  not  turn  out  so  when  we  have 
it  duly  reported;  and  I  fear,  however  the  decisions  may  stand,  that  the 
question  of  a  dissolution  of  the  Union  is  soon  to  come  up  for  angry 
discussion." 

See  Life  and  Letters  and  Journals  of  George  Ticknor. 


432  A  HISTORY  OF  THE  AMERICAN  BAR 

tion  to  slavery,  and  he  believed  most  firaily  that  the  legal 
doctrine  wliich  he  had  announced  in  the  Prigg  case  would 
furnish  the  strongest  bulwark  to  the  National  Govern- 
ment against  the  increase  of  the  slave  power  in  the  States. 

Another  notable  decision  of  Story  at  this  term  was  that 
landmark  in  Federal  law,  Swift  v.  Tyson  (i6  Peters,  i),  a 
case  argued  by  W.  P.  Fessenden  of  Maine  against  Richard 
H.  Dana,  Jr.,  of  Massachusetts.^ 

The  chief  case  of  importance  in  1843  ^^s  Bronson  v. 
Kinzie  (i  Howard,  311),  in  which  the  doctrine  of  the 
Dartmouth  College  case  received  its  first  important  ex- 
tension in  the  twenty-four  years  since  its  decision.  The 
Court  held  that  a  statute  of  lUinois,  changing  the  mort- 
gage law  of  that  State,  affected  the  rights  and  not  merely 
the  remedies  of  a  mortgage,  and  therefore  impaired  the 
obligation  of  contracts. 

The  history  of  American  law  shows  no  more  interesting 
feature  than  the  manner  in  which  the  doctrmes  of  the 
Dartmouth  College  case  became  so  "imbedded  in  the 
jurisprudence  of  the  United  States  as  to  make  them  to 
all  intents  and  purposes  a  part  of  the  Constitution  itself."  ^ 
Over  forty-seven  years  after  its  decision,  and  twenty- 
three  years  after  Bronson  v.  Kinzie,  Judge  Davis  said  in 
a  case  in  1866:  "A  departure  from  it  now  would  involve 
dangers  to  society  that  cannot  be  foreseen,  would  shock 
the  sense  of  justice  of  the  country,  unhinge  business  in- 
terests, and  weaken,  if  not  destroy,  that  respect  which  has 
always  been  felt  for  the  Judicial  Department  of  the  Gov- 
ernment." ^  The  next  year.  Judge  Swayne  said:  "Its 
principles    are    axiomatic    in    American    jurisprudence 

1  See  especially  review  in  Law  Reporter,  June,  1842,  Vol.  V. 

2  Chief  Justice  Waite  in  Stone  v.  Mississippi,  loi  U.  S.  814  (1880). 
'  Chenango  Bridge  v.  Binghamton  Bridge  Co.,  3  Wallace,  51  (1866). 
«  U.  S.  V.  Quincy,  4  Wallace,  535  (1867). 


"  4 


THE  FEDERAL  BAR  AND  LAW,   183(1^1860         433 

And  in  1872,  Judge  Swayne  said  that  it  contained  "a 
principle  of  universal  jurisprudence.  It  is  necessary  to 
the  repose  and  welfare  of  all  communities.  A  diiTerent 
rule  would  shake  the  social  fabric  to  its  foundations  and 
let  in  a  flood  tide  of  intolerable  evils.  It  would  be  'con- 
trary to  the  general  principles  of  law  and  reason'  and  to 
one  of  the  most  vital  ends  of  government."  ^ 

The  spring  of  1844  was  notable  in  Washington  for  the 
argument  of  the  famous  case  of  Vidal  v.  Philadelphia  (2 
Howard,  127),  involving  the  will  of  Stephen  Girard.^  The 
case  had  been  first  argued,  in  1843,  by  Walter  Jones  against 
John  Sergeant,  but  owing  to  the  absence  of  three  of  the 
judges,  it  was  re-argued  in  1844  by  Jones  and  Webster 
against  Horace  Binney  and  Sergeant.^  As  an  example  of 
the  increase  in  legal  facilities,  it  is  to  be  noted  that  when  a 
similar  case  was  decided  by  Marshall  in  1819  {Baptist 
Association  v.  Hart's  Executors,  4  Wheaton,  i),  the  Cakfidars 

^  Osborn  v.  Nicholson,  13  Wallace,  654  (1872). 

2  See  The  Will  and  Biography  of  Stephen  Cirard — American  Quarterly 
Review,  Vol.  XIII  (1833). 

'  "When  the  case  was  carried  up  to  the  Supreme  Court,  Mr.  Binney 
was  joined  with  him  at  Mr.  Sergeant's  request,  and  went  to  England  to 
make  himself  more  familiar  with  the  law  of  charitable  cases.  He  returned 
fully  prepared  for  the  encounter.  Mr.  Binney  was  tall,  large,  well  formed, 
always  well  dressed,  and  an  Apollo  in  manly  beauty.  He  spoke  slowly  and 
distinctly;  his  voice  was  full,  musical  and  well  modulated;  his  manners  a 
blending  of  dignity,  ease,  suavity  and  high  refinement.  .  .  .  He  spoke  three 
days,  during  which  the  court  room  was  filled  to  its  utmost  capacity  by 
beauty,  talent  and  eminence;  lawyers  of  eminent  abilities  were  drawn 
from  Richmond,  Baltimore  and  New  York,  to  listen.  .  .  .  Mr.  Sergeant  was 
a  lawyer  of  no  less  ability,  learning  and  eminence  than  Mr.  Binney;  but  he 
has  not  his  fine  voice  or  imposing  appearance.  He  spoke  two  days.  .  •  .  Mr. 
Webster,  who  made  the  closing  argument  in  the  case,  had  a  Herculean 
task  to  perform.  If  any  one  could  do  it,  he  could;  but  it  was  beyond  his 
power.  He  occupied  the  court  for  three  days,  the  room  the  whole  time 
being  densely  crowded." 

See  Public  Men  and  Events,  by  Nathan  Sargeant,  Vol.  II  (1875);  and  see 
Life  of  Horace  Binney,  by  Charles  C.  Binney. 


434  A  HISTORY  OF  THE  AMERICAN  BAR 

of  the  Proceedings  in  Chancery,  from  which  Binney  in  1843 
gleaned  more  than  fifty  precedents  for  his  contention, 
were  not  even  printed;  and  IMarshall  had  positively  stated 
that  there  was  no  trace  whatever  of  any  precedent. 

Story  thus  described  the  argument,  in  a  letter  to  his  wife, 
February  7,  1844: 

"We  have  been  for  several  days  engaged  in  Court  in 
hearing  arguments  upon  the  great  case  of  the  Girard  will, 
which  involves  seven  millions  of  dollars;  the  heirs  insisting 
that  the  main  bequest  for  building  a  college  for  orphans 
is  void.  Mr.  Jones,  of  this  city,  spoke  on  it  nearly  three 
days;  Mr.  Binney  of  Philadelphia,  has  been  speaking  on 
the  opposite  side  (for  the  city)  nearly  three  days,  and  has 
made  a  most  masterly  argument;  Mr.  Sergeant,  of  Phila- 
delphia, is  to  follow  on  the  same  side,  and  the  argument  is 
to  be  concluded  by  Mr.  Webster,  for  the  heirs. 

"February  10.  Saturday  evening.  I  was  here  again 
interrupted,  and  for  the  first  time  am  now  able  to  resume 
my  pen.  In  the  case  of  the  Girard  will,  the  arguments 
have  been  contested  with  increasing  pubHc  interest,  and 
Mr.  Sergeant  and  Mr.  Binney  concluded  their  arguments 
yesterday.  A  vast  concourse  of  ladies  and  gentlemen 
attended,  with  unabated  zeal  and  earnest  curiosity,  through 
their  speeches,  which  occupied  four  days.  Mr.  Webster 
began  his  reply  to  them  to-day,  and  the  Court-room  was 
crowded,  almost  to  suffocation,  with  ladies  and  gentlemen 
to  hear  him.  Even  the  space  behind  the  Judges,  close  home 
to  their  chairs,  presented  a  dense  mass  of  listeners.  He 
will  conclude  on  Monday.  The  curious  part  of  the  case 
is,  that  the  whole  discussion  has  assumed  a  semi-theological 
character.  Mr.  Girard  excluded  ministers  of  all  sects  from 
being  admitted  into  his  college  as  instructors  or  visitors; 
but  he  required  the  scholars  to  be  taught  the  love  of  truth, 
morality,  and  benevolence  to  their  fellow-men.  Mr.  Jones 
and  Mr.  Webster  contended  that  these  restrictions  were 
anti-Christian,  and  illegal.  Mr.  Binney  and  Mr.  Sergeant 
contended  that  they  were  valid,  and  Christian,  founded 
upon  the  great  difi&culty  of  making  ministers  cease  to  be 


THE  FEDERAL  BAR  AND  LAW,   i83<>-i86o         435 

controversialists,  and  forbearing  to  teach  the  doctrines 
of  their  sect.  I  was  not  a  little  amused  with  the  manner  in 
which,  on  each  side,  the  language  of  the  Scriptures  and 
the  doctrines  of  Christianity  were  brought  in  to  point  the 
argument;  and  to  find  the  Court  engaged  in  hearing 
homilies  of  faith  and  expositions  of  Christianity,  with  almost 
the  formality  of  lectures  from  the  pulpit." 

On  February  13,  1844,  John  Quincy  Adams  notes  in 
his  Diary: 

"To  escape  an  hour  or  two  of  soporifics,  left  the  Hall 
(of  Representatives)  and  went  into  that  where  the  Supreme 
Court  were  in  session  to  see  what  had  become  of  Stephen 
Girard's  will  and  the  scramble  of  lawyers  and  collaterals 
for  the  fragments  of  his  colossal  and  misshapen  endowment 
of  an  infidel  charity  school  for  orphan  boys. 

"Webster  had  just  before  closed  his  argument  for  which 
it  is  said,  if  he  succeeds,  he  is  to  have  fifty  thousand  dollars 
for  his  share  of  the  plunder." 

Story's  decision  upholding  the  will,  and  against  Web- 
ster's argument,  was  generally  supported  by  the  profession 
and  especially  by  Kent,  to  whom  Story  wrote  August  31, 
1844: 

"I  rejoice  to  know  your  opinion  in  the  Girard  case.  The 
Court  were  unanimous,  and  not  a  single  sentence  was 
altered  by  my  brothers,  as  I  originally  drew  it.  I  confess, 
that  I  never  doubted  on  the  point;  but  it  is  a  great,  a 
sincere  comfort  to  have  your  judgment,  free,  independent, 
learned,  on  it.  Mr.  Webster  did  his  best  for  the  other  side, 
but  it  seemed  to  me,  altogether,  an  address  to  the  prejudice 
of  the  clergy." 

The  years  1845  and  1846  passed  without  any  case  of 
prime  importance  before  the  Supreme  Court;  and  the 
chief  event  of  legal  note  was  Judge  Joseph  Story's  resigna- 
tion in  1845.  As  the  only  remaining  Judge  of  the  Bench 
as  it  was  constituted  in  Marshall's  day,  he  had  for  several 
vears  been  out  of  touch  with  the  tendencies  of  the  de- 


436  A  HISTORY  OF  THE  AMERICAN  BAR 

cisions  of  the  present  Court;    and  on  April  25,  1845,  he 
wrote: 

"Although  my  personal  position  and  intercourse  with 
my  brethren  on  the  Bench  has  always  been  pleasant,  yet 
I  have  been  long  convinced  that  the  doctrines  and  opinions 
of  the  'old  Court'  were  daily  losing  ground,  and  especially 
those  on  great  constitutional  questions.  New  men  and 
new  opinons  have  succeeded.  The  doctrines  of  the  Con- 
stitution, so  vital  to  the  country,  which  in  former  times 
received  the  support  of  the  whole  Court,  no  longer  main- 
tain their  ascendancy.  I  am  the  last  member  now  Uving, 
of  the  old  Court,  and  I  cannot  consent  to  remain  where 
I  can  no  longer  hope  to  see  those  doctrines  recognized  and 
enforced.  For  the  future  I  must  be  in  a  dead  minority 
of  the  Court,  with  the  painful  alternative  of  either  express- 
ing an  open  dissent  from  the  opinions  of  the  Court,  or, 
by  my  silence,  seeming  to  acquiesce  in  them.  The  former 
course  would  lead  the  public,  as  well  as  my  brethren,  to 
believe  that  I  was  determined,  as  far  as  I  might,  to  diminish 
the  just  influence  of  the  Court,  and  might  subject  me  to 
the  imputation  of  being,  from  motives  of  mortified  am- 
bition, or  political  hostility,  earnest  to  excite  popular 
prejudices  against  the  Court.  The  latter  course  would 
subject  me  to  the  opposite  imputation,  of  having  either 
abandoned  my  old  principles,  or  of  having,  in  sluggish 
indolence,  ceased  to  care  what  doctrines  prevailed.  Either 
alternative  is  equally  disagreeable  to  me,  and  utterly  repug- 
nant to  my  past  habits  of  life,  and  to  my  present  feelings. 
I  am  persuaded  that  by  remaining  on  the  Bench  I  could 
accomplish  no  good,  either  for  myself  or  for  my  country." 

In  1847,  arose  the  celebrated  License  Cases,  involving 
the  constitutionaUty  of  the  prohibitionist  liquor  legisla- 
tion in  Rhode  Island,  Massachusetts  and  New  Hampshire 
—  Thurlow  V.  Massachusetts  (5  Howard,  504).  In  these 
cases,  Webster,  Rufus  Choate  and  John  Davis  of  Massa- 
chusetts and  Samuel  Ames  ^  and  Richard  W.  Greene  of 

»  Bom  in  1806,  Brown  1823,  Chief  Justice  of  Rhode  Island  1856-1865. 


THE  FEDEFL'VL  BAR  AND   LAW,   1830-1860         437 

Rhode  Island  appeared  as  counsel.  In  general,  the  State 
statutes  were  upheld,  as  not  being  an  interference  with 
interstate  commerce.  In  this  same  year,  the  Court  fore- 
shadowed in  Waring  v.  Clarke  (5  Howard,  441)  the  ex- 
tended admiralty  jurisdiction  which,  four  years  later,  it 
was  to  estabhsh.  This  noted  case  was  argued  by  Reverdy 
Johnson  against  John  J.  Crittenden;  and  a  similar  case 
was  argued  with  it  by  Ames  and  Whipple  of  Rhode  Island 
against  Webster  and  R.  W.  Greene. 

In  the  same  year  (1847),  the  famous  case  of  Jones  v. 
Van  Zandt  (5  Howard,  215)  was  decided,  in  which  the 
slavery  question  had  been  argued  at  great  length  by  Wil- 
Ham  H.  Seward  and  Salmon  P.  Chase  ^  against  Senator 
James  T.  Morehead  of  Kentucky .^  It  involved  the  con- 
stitutionaUty  of  a  statute  imposing  a  penalty  for  harbor- 
ing a  fugitive  slave.  In  view  of  the  fact  that  only  ten 
years  later,  in  1857,  in  the  Dred  Scott  case,  the  Court  at- 
tempted to  settle  by  judicial  decision,  the  political  ques- 
tion of  slavery,  it  is  curious  to  note  that  at  this  time  — 
the  year  of  the  Mexican  war,  and  three  years  before  the 
passage  of  the  Compromise  and  Fugitive  Slave  Act  of 
1850  —  the  Court  refused  to  consider  the  pohtical  question 
involved.  Judge  Levi  Woodbury,  Story's  successor,  sa}'ing 
in  his  opinion: 

"But  before  concluding,  it  may  be  expected  by  the  de- 
fendant that  some  notice  should  be  taken  of  the  argument 
urging  on  us  a  disregard  to  this  subject  on  account  of  the 

*  Salmon  P.  Chase,  from  this  argument  and  from  his  appearance  in 
numerous  other  slave  cases  at  this  time  acquired  the  title  of  "  the  Attorney- 
General  for  runaway  negroes." 

See  interesting  account  of  this  case  in  Life  of  Willium  11.  Seward,  by 
Frederic  Bancroft  (1900),  and  Life  and  Public  Services  of  Salmon  Portland 
Chase,  by  J.  W.  Shuckers  (1874). 

*  Bom  in  1797,  Transylvania  University  1818,  Governor  of  Kentucky 
1834,  United  States  Senator  1841. 


438  A  HISTORY  OF  THE  AMERICAN  BAR 

supposed  inexpediency  and  invalidity  of  all  laws  recog- 
nizing slavery  or  any  right  of  property  in  man.  But  that 
is  a  political  question  settled  by  each  State  for  itself;  and 
the  Federal  power  over  it  is  limited  and  regulated  by 
the  sacred  compromises,  and  which  we  possess  no  authority 
as  a  judicial  body  to  modify  or  overrule.  .  .  .  Whatever 
may  be  the  theoretical  opinion  of  any  as  to  the  expediency 
of  some  of  those  compromises  or  of  the  right  of  property 
in  persons  which  they  recognize,  this  Court  has  no  alter- 
native, while  they  exist,  but  to  stand  by  the  Constitution 
and  laws  with  fidelity  to  their  duties  and  their  oaths.  Their 
path  is  a  straight  and  narrow  one,  to  go  where  that  Con- 
stitution and  laws  lead,  and  not  to  break  both  by  travelling 
without  or  beyond  this." 

In  1849,  the  subject  of  the  Dorr's  Rebellion  in  Rhode 
Island  arose  in  Luther  v.  Borden  (7  Howard,  i)  argued  by 
B.  F.  Hallett  and  John  H.  Clifford  of  Massachusetts  against 
Daniel  Webster  and  Whipple  of  Rhode  Island.  In  this 
case,  Chief  Justice  Taney,  in  one  of  his  finest  legal  opinions, 
held  the  question  a  political  one,  and  declined  to  interfere. 

The  important  cases  known  as  the  Passenger  Cases, 
Smith  V.  Turner  and  N orris  v.  Boston  (7  Howard,  283), 
were  decided  at  this  term.  They  involved  the  constitu- 
tionahty  of  the  passenger  tax  statutes  of  New  York  and 
Massachusetts,  of  which  Webster  wrote  to  his  son,  Feb- 
ruary 7,  1847:  "It  is  strange  to  me  how  any  Legislature 
of  Massachusetts  could  pass  such  a  law.  In  the  days  of 
Marshall  and  Story  it  could  not  have  stood  one  moment. 
The  present  Judges  I  fear  are  quite  too  much  inclined  to 
find  apologies  for  irregular  and  dangerous  acts."  He 
wrote  again,  February  3,  1849,  just  before  the  final  decision: 

"In  my  poor  judgment  the  decision  will  be  more  im- 
portant to  the  country  than  any  decision  since  that  in  the 
Steamboat  cause."  The  Court  itself  was  so  gravely  im- 
pressed with  the  question  presented  and  so  divided  in 


THE  FEDEIL-VL  BAR  AND   LAW,   1 830-1 860         439 

opinion  that  the  cases  were  argued  sLx  times  —  the  New 
York  case  in  December,  1845,  by  D.  B.  Ogden  of  New 
York  and  Webster  against  John  Van  Buren,  then  Attorney- 
General  of  New  York,  and  Willis  Hall,  Ex-Attorney-General, 
again  in  December,  1847,  and  a  third  time  in  December, 
1848;  the  Massachusetts  case  was  argued  first  by  Webster 
and  Rufus  Choate  against  John  Davis  of  Massachusetts 
in  December,  1846,  again  by  Choate  against  Davis  in 
December,  1847,  ^^d  a  third  time  by  Webster,  Rufus 
Choate,  and  J.  Prescott  Hall  of  New  York  against  John 
Davis  and  George  Ashmun  of  Massachusetts  in  December, 
1848.    The  State  laws  were  held  unconstitutional.^ 

At  the  December  term  of  1850  the  struggle  for  supremacy 
between  the  steamboats  and  the  railroads  came  to  the 
front,  in  the  great  case  of  Pennsylvania  v.  Wheeling  and 
Belmont  Bridge  Co.  (9  Howard,  647),  argued  by  Edwin  M. 
Stanton  against  Reverdy  Johnson  "with  a  degree  of  ability 
and  learning  worthy  of  the  palmiest  days  of  the  old  Bar 
of  the  Supreme  Court."  ^  It  was  held  that  the  bridge  was 
an  obstruction  to  commerce,  and  also  a  nuisance  as  an 
infringement  on  the  Common  Law  rights  of  the  State  of 
Pennsylvania. 

In  185 1,  the  question  of  the  right  of  the  States  to  legis- 
late on  matters  affecting  interstate  commerce  in  the  ab- 
sence of  Congressional  legislation  on  the  subject  arose  in 
Cooky  v.  Port  Wardens  (12  Howard,  299),  a  case  involv- 
ing  the   pilotage   laws   of   Pennsylvania   and   argued   by 

»  See  letters  of  Webster  to  Fletcher  Webster,  Feb.  7,  1847,  Dec.  7,  1847, 
January,  1848,  June  10,  1849;  to  J.  Prescott  Hall,  Feb.  10,  1849;  and  to 
S.  Blatchford,  Feb.  3,  1849,  in  Writings,  Letters  and  Speeches  of  Daniel 
Webster,  Vols.  XVI  and  XVIII  (1903).    See  Law  Reporter,  Vol.  XI,  p.  478. 

2  History  of  the  Supreme  Court  of  tlie  United  States,  by  H.  G.  Carson, 
Vol.  II. 

For  interesting  account  of  the  important  case  see  Life  and  Public  Services 
of  Edwin  M.  Stanton,  by  George  C.  Gorham  (1899). 


440  A  HISTORY  OF  THE  AMERICAN  BAR 

Phineas  P.  Morris  and  Job  R.  Tyson  against  James  Camp- 
bell and  George  M.  Dallas. 

The  case  definitely  settled  the  long  struggle  which  had 
been  going  on  since  Gibbons  v.  Ogden  in  1824  over  the 
field  of  national  control  of  commerce.  The  decision  "sepa- 
rated the  field  over  which  Congress  is  given  the  power  of 
regulation  into  two  smaller  fields  —  one  consisting  of 
matters  of  a  general  nature  in  which  Federal  jurisdiction, 
whether  exercised  or  not,  exclude  all  State  action;  the 
other  field  consisting  of  matters  of  a  local  nature  in  which 
the  States  may  act  until  superseded  by  Congress."  ^ 

In  this  year  came  the  decision  in  the  Genesee  Chief  (12 
Howard,  443),  a  case  argued  by  Stanley  P.  Mathews  of 
Ohio  against  William  H.  Seward  of  New  York.  Chief  Jus- 
tice Taney  held  that  the  old  Common  Law  doctrine  that 
admiralty  jurisdiction  was  confined  to  the  ebb  and  flow  of 
the  tide  was  unsuited  to  this  country  and  that  the  ad- 
miralty courts  extended  to  the  Great  Lakes  and  all  navi- 
gable waters  of  the  country.  This  decision  was  of  extreme 
importance  to  American  internal  commerce,  for  it  threw 
into  the  Federal  courts  a  vast  range  of  torts  and  contracts 
connected  with  shipping  and  maritime  matters,  thus  giving 
a  unity  to  this  branch  of  the  law  extremely  desirable  in 
view  of  the  development  of  the  growing  commerce  in  the 
new  Western  States,^ 

In  1852,  the  first  railroad  negligence  case  arose  in  this 
Court,  Philadelphia  &°  Reading  R.  R.  v.  Derby  (14  How- 
ard, 468),  in  which  the  Court  referred  to  the  "new,  power- 

*  See  The  Right  to  engage  in  Interstate  Commerce,  by  E.  P.  Prentice, 
Harv.  Law  Rev.,  Vol.  XVII  (1903);  and  see  comments  in  Crandall  v.  Nevada, 
6  Wall.  62;  and  Mobile  v.  Kimball,  102  U.  S.  702. 

*  See  article  in  American  Law  Register,  Vol.  I  (1852). 

"As  questions  of  collisions  and  on  the  law  of  carriers  are  daily  arising, 
especially  in  ova  western  waters,  our  readers  will  see  the  very  important 
character  of  this  decision." 


THE  FEDERAL  BAR  AND  LAW,   1830-1860         441 

ml  but  dangerous  agency  of  steam"  and  to  the  detriment 
to  the  public  safety  that  would  come  from  any  relaxation 
of  a  stringent  policy. 

In  1853,  the  case  of  Smith  v.  Sn'ormstedt  (16  Howard, 
288)  involving  the  division  of  the  great  Methodist  Epis- 
copal Church  into  two  organizations  one  for  the  slave 
holding  States  and  one  for  the  other  States,  argued  by 
Stanberry  against  Badger  and  Ewing,  throws  a  light  on 
the  manner  in  which  the  slavery  question  entered  even 
into  rehgion.  In  1856,  this  question  presented  itself  in 
its  most  dangerous  form  in  the  case  of  Dred  Scott  v.  San- 
ford,  argued  by  Montgomery  Blair  of  Maryland  ^  and 
George  Ticknor  Curtis  of  IMassachusetts  -  for  the  slave 
Scott  and  Reverdy  Johnson  and  H.  S.  Geyer  of  Missouri  ^ 
for  the  owner.  It  was  reargued  in  1856,  and  the  opinion 
was  given  March  6,  1857,  two  days  after  the  inauguration 
of  President  Buchanan  (19  Howard,  393). 

No  more  fatal  legal  or  political  delusion  ever  appeared 
in  any  judicial  decision  than  in  the  following  words  of  IMr. 
Justice  Wayne : 

"The  case  involves  private  rights  of  value  and  constitu- 
tional questions  of  the  highest  importance  about  which 
there  had  become  such  a  difference  of  opinion  that  the 
peace  and  harmony  of  the  country  required  the  settlement 
of  them  by  judicial  decision." 

Few  other  cases  of  prime  importance  were  decided  prior 
to  i860,  except  that  of  Ahleman  v.  Booth  (21  Howard,  506) 
in  1859  in  which  the  constitutionality  of  the  Fugitive 
Slave  Act  of  1850  was  upheld,  and  the  judgment  of  the 
Supreme  Court  of  Wisconsin  declaring  it  unconstitutional 
was  reversed. 

*  Born  in  1813. 

*  Born  in  1812,  Harvard  1832. 

»  Bom  in  1790,  United  States  Senator  1851-1857. 


442  A  HISTORY  OF  THE  AMERICAN  BAR 

With  the  outbreak  of  the  Civil  War,  the  early  history 
of  the  American  Bar  and  law  comes  to  an  end.  The  cases 
which  arose  after  that  era  were,  in  large  part,  of  a  dis- 
tinctly different  character;  and  the  lawyers  of  the  fifty 
years  since  have  been  grappKng  with  questions  of  which 
their  predecessors  knew  nothing,  —  the  political,  social 
and  economic  problems  groAAdng  out  of  the  Thirteenth, 
Fourteenth  and  Fifteenth  Amendments;  the  development 
of  the  great  modern  corporations;  the  intricacies  of  modern 
finance,  with  its  mass  of  new  law  relating  to  shares  of 
stock,  bonds,  mortgages,  stockholders  and  receivers;  and 
the  vast  increase  in  novel  and  revolutionary  economic 
legislation. 

The  American  Bar  of  the  years  1860-1910  presented, 
therefore,  an  entirely  different  type,  —  the  modern  cor- 
poration or  business  lawyer,  whose  history  is  not  within 
the  scope  of  this  book. 

As,  however,  the  Bar  of  the  period  from  1830  to  i860 
differed  in  many  respects,  as  greatly  from  its  predecessors 
of  the  earhest  years  of  the  Nation,  as  the  modern  lawyer 
does  from  the  ante-bellum  lawyer,  the  three  following 
chapters  of  this  book  will  be  devoted  to  a  description  of 
the  conditions  under  which  the  Bar  of  the  middle  of  the 
Nineteenth  Century  flourished,  and  of  the  problems  which 
faced  it  for  solution.  That  Bar  may  fairly  be  termed  a 
reformatory  Bar.  The  times  were  alive  with  new  ideas, 
with  the  spirit  of  change;  and  the  great  lawyers  must  be 
men  of  vision.  And  though  the  times  were  also  filled  with 
the  ferment  of  new  business  and  corporate  methods,  the 
Bar  was  not  so  largely  engrossed  with  that  side  of  the  law, 
as  to  forget  that  it  was  the  prophet  of  humanity  as  well. 

During  the  twenty  years  between  1830  and  1850,  the 
cases  before  the  Supreme  Court  multiplied  so  greatly, 
with  the  growth  of  the  country  and  the  rise  and  increase 


THE  FEDEIL^VL  BAR  AND  LAW,   i83<:^i86o         443 

of  railroads  making  access  to  Washington  so  much  easier, 
that  in  1845  the  sessions  of  the  Court,  which  since  1827 
had  begun  in  January  (under  Act  of  May  4,  1826),  were 
now  lengthened  one  month,  beginning  in  December  of 
one  year  and  continuing  through  March  of  the  next  year 
(under  Act  of  June  7,  1844).  The  number  of  Associate 
Judges  was  increased  from  six  to  eight  by  the  Act  of  March 
3,  1837.  The  changes  in  the  personnel  of  the  Court  during 
these  years  were  many.  Senator  George  F.  Hoar  in  his 
autobiography  says  that,  when  his  brother  E.  Rockwood 
Hoar  visited  Washington  in  1836,  "Webster  received  him 
with  great  kindness,  showed  him  about  the  capital  and 
took  him  to  the  Supreme  Court  where  he  argued  a  case. 
Mr.  Webster  began  by  alluding  very  impressively  to  the 
great  change  which  had  taken  place  in  that  Tribunal  since 
he  first  appeared  as  counsel  before  them.  He  said:  'No 
one  of  the  Judges  who  was  here  then,  remains.  It  has 
been  my  duty  to  pass  upon  the  question  of  the  confirma- 
tion of  every  member  of  the  Bench;  and  I  may  say  that 
I  treated  your  honors  with  entire  impartiality,  for  I  voted 
against  every  one  of  you.'  " 

In  1834,  William  Johnson  of  South  Carolina  died  and 
James  M.  Wayne  of  Georgia  took  his  place  in  1835.  Philip 
P.  Barbour  of  Viriginia  was  appointed,  in  1836,  in  place 
of  Gabriel  Duvall  (resigned).  Taney  succeeded  Marshall 
as  Chief  Justice,  March  15,  1836.  In  1837,  John  Catron 
of  Tennessee  and  John  McKinley  of  Alabama  were  ap- 
pointed as  the  two  new  Associate  Judges. 

In  1841,  Peter  L.  Daniel  of  Virginia  succeeded  Barbour 
on  the  latter's  death.  In  1845,  Samuel  Nelson  of  New 
York  took  the  place  of  Smith  Thompson,  who  died  in 
1843.  Ill  tbs  same  year,  Levi  Woodbury  succeeded  Story; 
and  was  himself  succeeded  on  his  death,  in  185 1,  by  Ben- 
jamin R.  Curtis  of  Massachusetts.     In  1844,  Robert  C. 


444  A  HISTORY  OF  THE  MIERICAN  BAR 

Grier  of  Pennsylvania  succeeded  Henry  Baldwin.  In 
1853,  John  A.  Campbell  of  Alabama  succeeded  McKinley. 
In  1858,  Nathan  CHfford  of  Maine  took  Benjamin  R. 
Curtis'  place  on  the  latter's  resignation.  There  were  in 
the  seventy-one  years  between  1789  and  i860  just  thirty- 
six  Justices,  including  five  Chief  Justices. 

The  Attorneys-General  were  Roger  B.  Taney  of  Mary- 
land (1831-1833),  Benjamin  F.  Butler  of  New  York  (1833- 
1838),  FelLx  Grundy  of  Tennessee  (1838-1839),  Henry  D. 
Gilpin  of  Pennsylvania  (1840-1841),  John  J.  Crittenden  of 
Kentucky  (1841),  Hugh  S.  Legare  of  South  Carolina 
(1841-1843),  John  Nelson  of  Maryland  (1843-1845), 
Nathan  ClijEford  of  Maine  (i 846-1 848),  Reverdy  Johnson 
of  Maryland  (1849-1850),  John  J.  Crittenden  of  Kentucky 
(1850-1853),  Caleb  Gushing  of  Massachusetts  (1853-1857), 
Jeremiah  S.  Black  of  Pennsylvania  (1857-1860)  and  Edwin 
M.  Stanton  (1860-1861). 

NOTE 

Though  not  within  the  scope  of  this  book,  which  is  not  in- 
tended to  encroach  on  the  modern  era  of  the  law  which  began 
with  the  Civil  War,  it  may  be  of  interest,  in  order  to  complete 
the  view  of  the  Federal  Courts,  to  note  the  following  changes 
which  have  occurred  in  the  legislation  as  to  them. 

By  Act  of  March  3,  1863,  a  ninth  Associate  Justice  was 
added  to  the  Supreme  Court.  In  1866,  because  of  the  fear 
that  President  Johnson  might  appoint  to  the  Court  men  imbued 
with  his  political  views,  the  precedent  set  by  Congress  in  Presi- 
dent John  Adams'  day  was  revived,  and  by  Act  of  July  23, 1866, 
it  was  provided  that  no  further  appointments  should  be  made 
to  the  Court  until  the  number  of  Associate  Justices  was  re- 
duced to  sk,  and  that,  thereafter,  the  Court  should  remain 
at  that  number.  This  statute  was  repealed  by  Act  of  April 
10,  1869,  and  since  that  Act  the  Court  has  consisted  of  a  Chief 
Justice  and  eight  Associate  Justices,  as  it  did  from  1837  to 
1863. 


THE  FEDERAL  BAR  AND  LAW,   1 830-1 860         445 

The  term  of  the  sitting  of  the  Court,  which,  since  1844,  had 
begun  on  the  second  Monday  in  December,  was  changed  by 
Act  of  July  23,  1866,  to  the  second  Monday  in  October.  The 
salaries  of  the  Judges  were  increased,  March  3,  1871,  from  86,500 
to  $8,500  for  the  Chief  Justice,  and  from  $6,000  to  S8,ooo  for 
the  Associate  Justices;  and  were  further  increased,  March  3, 
1873,  to  $10,500  and  $10,000. 

By  Act  of  February  24,  1855,  the  United  States  Court  of 
Claims  was  established,  consisting  of  a  Chief  Justice  and  four 
associate  judges. 

By  Act  of  April  10,  1869,  the  Circuit  Courts  of  the  United 
States  were  re-organized  with  separate  Circuit  Court  judges. 
By  Act  of  March  3,  1 891,  the  Circuit  Court  of  Appeals  was  es- 
tablished. Recent  years  have  witnessed  the  creation  of  two 
further  Federal  Courts  of  inferior  jurisdiction  —  the  United 
States  Court  of  Customs  Appeal  by  Act  of  August  5,  1909, 
and  the  Commerce  Court  by  Act  of  June  18,  1910. 


CHAPTER  XVII 

THE   PROGRESS   OF   THE   LAW,    183O-1860 

The  years  1830  to  i860  constitute  a  period  of  legal 
development  in  State  and  Federal  law  greater  than  any 
period  in  the  legal  history  of  the  country.  During  these 
years,  students  and  practitioners  of  law  were  witness- 
ing the  slow  up-building  of  many  a  legal  structure  now 
complete. 

Two  things  were  especially  characteristic  of  this  era  — 
the  first  being  the  increasing  recognition  and  protection 
of  individual  rights  under  the  law  ^  —  the  emancipation 
of  married  women;  the  safeguards  thrown  around  infants, 
insane  and  criminals;  prison  reform;  milder  forms  of 
criminal  punishment;  aboHrion  of  imprisonment  for  debt; 
the  treatment  of  bankruptcy  as  a  misfortune  and  not  a 
crime;  the  removal  of  the  bars  against  the  testimony 
of  witnesses  and  parties  in  civil  and  criminal  cases;  the 
recognition  of  labor  unions;  and  the  simplification  of  the 
law  by  codes  and  statutory  revisions,  for  the  benefit  of 
laymen  as  well  as  lawyers. 

These  radical  changes  in  personal  status  brought  about 
by  statutes  and  judicial  decisions  were  undoubtedly  due 
in  considerable  degree  to  a  poHrical  change,  the  influence 
of  which  has  never  received  adequate  attention  —  the 
gradual  abohtion,  from  1820-1840,  of  property  quaUfica- 

1  See  Jurisprudence  —  lis  Development  during  the  Past  Century,  by 
Joseph  H.  Beale,  Jr.,  Congress  of  Arts  and  Sciences,  Vol.  VII  (1906). 


THE  PROGRESS  OF  THE  LAW,   1830-1860  447 

tions  for  voting  and  for  holding  office.  Such  property 
qualifications  had  existed  in  Connecticut,  until  1818;  in 
Massachusetts  and  New  York,  until  1821;  in  Virginia 
and  Tennessee,  until  1830;  and  in  some  other  States  for 
ten  or  fifteen  years  later.  Their  abolition,  however,  changed 
the  character  of  the  electorate,  democratized  it,  altered 
the  constituent  parts  of  the  Legislatures,  and  thus  pro- 
duced entirely  new  tendencies  in  legislation.  This  broad- 
ened spirit  of  the  statutes  after  1820  is  very  noticeable; 
and  as  the  courts  of  the  United  States  are  generally  re- 
sponsive to  their  surroundings,  the  trend  of  judicial  de- 
cisions shows  the  influence  of  the  democratic  popular 
voice.  The  abolition  of  property  qualifications,  there- 
fore, while  responsible,  in  politics,  for  the  birth  of  the 
new  Democratic  party  and  the  election  of  President  Jack- 
son and  his  successors,  was  also  unquestionably  a  factor  in 
the  liberal  and  progressive,  sometimes  radical,  decisions 
for  which  the  courts  (especially  in  Massachusetts,  New 
York,  and  Pennsylvania)  were  noted  during  this  era. 

The  second  characteristic  of  the  era  was  the  remarka- 
ble modernization  of  old  legal  doctrines.  The  inventions 
that  so  thronged  it  were  a  severe  test  of  the  malleability 
of  the  old  Common  Law,  and  of  its  capability  of  adapta- 
tion to  fit  the  new  economic,  commercial  and  social  con- 
ditions. It  was  to  the  everlasting  credit  of  the  great 
judges  and  of  the  great  law}^ers  of  the  times  that  the 
Common  Law  was  proved  fully  adequate  to  meet  the 
strain. 

Of  the  Chief  Justices  who  have  left  a  marked  impress 
upon  the  course  of  legal  development,  there  may  be  men- 
tioned especially  John  Bannister  Gibson,  in  Pennsylvania, 
from  1827  to  1851;  Isaac  N.  Blackford,  in  Indiana,  from 
181 7  to  1853;  Henry  W.  Green,  in  New  Jersey,  from  1846 
to   i860;    William   M.   Richardson,   from   1812   to   1S38, 


448  A  HISTORY  OF  THE  AMERICAN  BAR 

and  Joel  Parker  from  1838  to  1847,  in  New  Hampshire; 
and  Thomas  Scott  Williams,  in  Connecticut,  from  1834 

to  1847. 

One  jurist  stood  out  above  all  others  in  his  ability  to 
shape  the  Common  Law  to  modern  needs  —  Lemuel 
Shaw,  the  great  Chief  Justice  of  Massachusetts,  whose 
term  of  service  on  the  bench  covered  exactly  these  thirty 
years  (1830-1860). 

In  the  words  of  the  address  presented  to  him  upon  his 
retirement,  in  i860,  by  the  Bar  of  Massachusetts: 

*'It  was  the  task  of  those  who  went  before  you,  to  show 
that  the  principles  of  the  common  and  the  commercial 
law  were  available  to  the  wants  of  communities  which  were 
far  more  recent  than  the  origin  of  those  systems.  It  was 
for  you  to  adapt  those  systems  to  still  newer  and  greater 
exigencies;  to  extend  them  to  the  solution  of  questions, 
which  it  required  a  profound  sagacity  to  foresee,  and  for 
which  an  intimate  knowledge  of  the  law  often  enables 
you  to  provide,  before  they  had  even  fully  arisen  for  judg- 
ment. Thus  it  has  been,  that  in  your  hands  the  law  has 
met  the  demands  of  a  period  of  unexampled  activity  and 
enterprise;  while  over  all  its  varied  and  conflicting  in- 
terests you  have  held  the  strong,  conservative  sway  of  a 
judge,  who  moulds  the  rule  for  the  present  and  the  future 
out  of  the  principles  and  precedents  of  the  past.  Thus 
too,  it  has  been,  that  every  tribunal  in  this  country  has 
felt  the  weight  of  your  judgments,  and  jurists  at  home 
and  abroad  took  to  you  as  one  of  the  great  expositors  of 
the  law.  .  .  ." 

With  the  advent  of  railroads  and  the  body  of  law  which 
arose  out  of  their  relations  to  the  public  and  to  their  em- 
ployees came  the  development  of  the  law  of  torts  in  the 
branch  with  which  "modern  courts  are  chiefly  concerned 
with  it  —  accident  law. 

As  is  well  known,  the  common  employment  or  em- 
ployer's non-liability  doctrine  was  estabhshed  in  this  coun- 


THE  PROGRESS  OF  THE  LAW,   183(^1860  449 

try  in  1842  — five  years  later  than  in  England  ^  —  by 
Chief  Justice  Shaw  in  the  noted  case  of  Fardjell  v.  Boston 
and  Worcester  R.  R.  (4  Mete.  49),  the  decision  in  this  case 
being  largely  influenced  by  economic  conditions  and  the 
need  of  favoring  the  young  and  struggling  institution  of 
railroads,  even  if  such  action  placed  a  burden  on  a  class  less 
able  to  bear  it. 

The  lateness  of  the  development  of  the  branches  of 
accident  law  which  now  fill  the  law  reports  may  be  reahzed 
in  noting  that  the  first  accident  case  brought  in  a  manu- 
facturing State  hke  Massachusetts  by  an  employee  against 
a  manufacturing  corporation  was  in  1850;  ^  and  in  Redjield 
on  Railways,  published  as  late  as  1858,  only  five  pages  are 
devoted  to  the  law  relating  to  accidents  caused  by  negli- 
gence of  fellow  servants  or  use  of  machinery  and  appliances. 
The  first  accident  case  for  defect  in  a  sidewalk  brought  in 
Massachusetts  against  a  city  or  town  was  in  1849.^ 

Actions  for  death  caused  by  negligence  arose  in  England 
after  the  passage  of  Lord  Campbell's  Act  (9  &  10  Vict, 
c.  93),  in  1846.  New  York  followed  in  this  country,  by 
giving  similar  cause  of  action,  through  a  statute  passed  in 
1847;  and  Ohio,  Pennsylvania,  and  Indiana,  in  1851. 

The  question  of  the  right  of  recovery  at  Common  Law 
in  such  cases  had  arisen  for  the  first  time  in  a  case  in  IMas- 
sachusetts  in  1848,  in  which  the  court  denied  the  right, 
sa>-ing:  "These  actions  raise  a  new  question  in  our  juris- 
prudence. ...  If  such  a  law  would  be  expedient  for  us, 
it  is  for  the  Legislature  to  make  it."  * 

1  Priestley  v.  Fowler,  3  Meeson  and  Welsby,  was  decided  in  England,  in 

1837. 

2  Albro  V.  Agawam  Canal  Co.,  6  Cush.  75  (1850). 
s  Bacon  v.  Boston,  3  Cush.  174  (1S49). 

*  Carey  v.  Berkshire  R.  R.  Co.,  1  Cush.  475  (184S). 
In  a  note  relative  to  this  case  in  United  States  Law  Magazine  for  Januar>-, 
i85i,it  issaid:  "The  question,  entirely  new  in  our  jurisprudence,  was  here 


4SO  A  HISTORY  OF  THE  AMERICAN  BAR 

The  slight  part  which  torts  played  in  the  law  of  the  day 
may  be  seen  from  the  fact  that  the  first  American  law 
book  on  the  subject  did  not  appear  until  1859  —  Francis 
Hilliard's  The  Law  of  Torts  and  Private  Wrongs  of  which 
the  Law  Reporter  (Vol.  XXII)  said  in  a  review: 

"This  work  is  a  well  conducted  attempt  to  do  for  the 
law  of  private  wrongs  what  has  been  so  often  and  so  elab- 
orately done  for  simple  contracts,  to  collect  in  one  book 
the  principles  and  cases  applicable  to  all  the  various  de- 
partments of  the  general  subject:  An  attempt,  as  the 
author  justly  says,  never  made  before  either  in  England 
or  America  excepting  in  a  very  general  way  as,  for  example, 
in  Blackstone's  Conifnentaries." 

The  law  of  torts  was  of  course  much  developed  through 
the  introduction  of  the  many  new  inventions  for  which 
this  period  was  especially  noted,  changing  so  greatly  the 
economic,  social  and  commercial  conditions  of  the  times. 

The  electric  telegraph  was  first  put  in  successful  opera- 
tion in  1844,  and  with  that  year  began  a  new  body  of  law 
relating  to  this  invention.  In  1849,  the  first  statute  in 
Massachusetts  relating  to  telegraph  companies  was  enacted, 
and  one  of  the  early  cases  in  the  United  States  involving 
the  new  invention  was  a  case  of  injury  to  a  traveller  on 
the  highway  from  a  telegraph  pole  estabhshed  under  this 
statute  —  Young  v.  Yarmouth  (9  Gray,  386),  in  1857.^ 

The  first  reported  telegraph  case  arose  in  1851,  in  one 
of  the  inferior  courts  of  Pennsylvania,  involving  a  statute 
forbidding  disclosure  of  a  message.^ 

In  the  next  nine  years  through  the  year  i860,  only  fifteen 
cases  arose,   relating   to   telegraph  companies.     Most  of 

raised  concerning  the  legal  right  to  complain  in  a  civil  court  for  the  death 
of  a  human  being  as  an  injury.  At  the  argument,  no  case  was  cited  in  which 
a  like  action  had  been  the  subject  of  adjudication,  or  even  of  discussion." 

'  See  also  Byron  v.  N.  Y.  State  Printing  Tel.  Co.,  26  Barb.  39  (1859). 

2  See  Telegraph  Cases,  by  Charles  Allen  (1873). 


THE  PROGRESS  OF  THE  LAW,   183(^1860  451 

these  cases  involved  the  question  of  the  liability  of  the 
companies  for  mistakes  in  transmission  or  delivery  of  mes- 
sages, whether  the  company  was  to  be  subject  to  the  lia- 
biUty  of  insurer  as  a  common  carrier,  and  regardless  of 
negligence.  By  i860,  the  law  was  well  settled  against 
such  Hability  ^  —  another  instance  of  the  tendency  of  the 
courts  to  construe  the  Common  Law  in  aid  of  the  promo- 
tion of  a  new  industry. 

The  first  telegraph  case  in  the  United  States  Supreme 
Court  was  decided  in  1858,  Western  Tel.  Co.  v.  Magnetic 
Tel.  Co.  (21  Howard,  456),  in  which  it  was  held  that  where 
there  was  no  infringement  of  patent,  no  company  had  a 
monopoly  of  the  right  to  telegraph  between  two  places. 
"It  must  be  expected  that  great  competition  will  exist  in 
the  transmission  of  intelligence,  when  telegraphic  lines 
have  been  established  throughout  the  country." 

No  case  was  reported  in  Massachusetts  until  1866  when 
it  was  held  that  telegraph  companies  were  not  subject  to 
the  liabiUty  of  common  carriers  —  Ellis  v.  Amer.  Tel.  Co. 
(13  Allen,  226),  Chief  Justice  Bigelow  (Shaw's  successor) 
saying: 

"It  appears  to  have  been  taken  for  granted  at  the  trial 
of  this  case,  as  it  certainly  was  in  the  arguments  of  learned 
counsel  at  the  bar  of  this  court  that  the  rights  of  the  parties 
were  to  be  determined  solely  by  having  recourse  to  the 
rules  and  principles  of  the  Common  Law.  This  we  think 
an  error.  We  entertain  no  doubt  that  these  would  have 
been  found  fully  adequate  to  the  satisfactory  solution  of  the 
various  questions  to  which  the  pursuit  of  this  novel  branch 
of  human  skill  and  industry  ^nll  in  the  course  of  time 
necessarily  give  rise.  But  the  Legislature  of  this  Common- 
wealth have  not  deemed  it  vnse  or  expedient  to  leave  to 
the  slow  progress  of  judicial  determination  the  regulation 

*  See  the  famous  "  two  hundred  bouquets  "  case  of  N.  7.  and  Washing- 
ton Printing  Td.  Co.  v.  Dryburg,  35  Pa.  St.  298  (i860). 


452  A  fflSTORY  OF  THE  AMERICAN  BAR 

of  a  business  on  which  so  many  of  the  daily  transactions 
of  life  involving  the  most  important  rights  and  interests 
are  made  to  depend." 

Another  economic  improvement  in  this  era  introduced  a 
new  line  of  cases  and  a  new  topic  in  the  law  —  the  Kabihty 
of  gas  corporations. 

The  first  neghgence  case  in  the  United  States  against  a 
gas  company  was  in  1850  —  Brown  v.  N.  Y.  Gaslight  Co. 
(Anthon's  N.  P.  Cases,  351).  The  first  case  in  Massachu- 
setts was  for  negligence  in  allowing  leaks  —  Holly  v.  Boston 
Gas  Light  Co.  (8  Gray,  123),  in  1857. 

Similar  cases  for  injuries  due  to  escaping  gas  arose  in 
many  instances  in  Connecticut,  New  York  and  Pennsyl- 
vania from  1850  to  1860.^ 

In  1852,  the  first  successful  street  railway  was  started 
in  New  York.  In  1853,  the  Cambridge  Street  Railway 
Company  and  the  Metropolitan  Street  Railway  Company 
were  chartered  in  Massachusetts,  and  began  running  in 
1856.  The  first  comprehensive  case,  dealing  with  the  re- 
spective rights  of  street  cars  and  other  travellers  on  the 
highway  was  decided  in  i860  —  Commonwealth  v.  Temple 
(14  Gray,  69).  The  opinion  in  this  case  was  one  of  the 
greatest  as  well  as  one  of  the  last  of  Chief  Justice  Shaw's 
opinions,  and  displayed  his  wonderful  ability  to  adapt  the 
Common  Law  to  new  conditions : 

''Since  horse  railroads  are  becoming  frequent  in  and 
about  Boston  and  are  likely  to  become  common  in  other 
parts  of  the  Commonwealth,  it  is  very  important  that 
the  rights  and  duties  of  all  persons  in  the  community, 
having  any  relations  with  them,  should  be  distinctly  known, 
and  understood,  in  order  to  accomplish  all  the  benefits, 
and  as  far  as  practicable  avoid  the  inconveniences,  arising 
from  their  use.  .  .  .  These  railroads  being  of  recent  origin, 
•few  cases  have  arisen  to  require  judicial  consideration, 

1  Digest  of  Gas  Cases,  by  Charles  P.  Greenough  (18S3). 


THE  PROGRESS  OF  THE  LAW,   1 830-1 860  453 

and  no  series  of  adjudicated  cases  can  be  resorted  to  as 
precedents  to  solve  the  various  new  questions  to  which 
they  may  give  rise. 

"But  it  is  the  great  merit  of  the  Common  Law  that  it  is 
founded  upon  a  comparatively  few  broad,  general  princi- 
ples of  justice,  fitness,  and  expediency,  the  correctness  of 
which  is  generally  acknowledged,  and  which  at  first  are 
few  and  simple;  but  which,  carried  out  in  their  practical 
details  and  adapted  to  extremely  complicated  cases  of 
fact,  give  rise  to  many  and  often  perplexing  questions. 
Yet  these  original  principles  remain  fixed  and  are  generally 
comprehensive  enough  to  adapt  themselves  to  new  insti- 
tutions and  conditions  of  society,  m.odes  of  commerce, 
new  usages  and  practices,  as  the  progress  of  society  in  the 
advancement  of  civilization  may  require." 

The  first  accident  case  against  a  street  railway  in  Massa- 
chusetts was  decided  in  1862  —  Wright  v.  Maiden  and  Mel- 
rose Street  Ry.  (4  Allen,  283). 

In  the  decade  1850-1860,  economic  conditions  in  Europe 
and  in  the  United  States  were  laying  the  foundations  for 
a  new  branch  of  law  relating  to  the  cultivation  and  storage 
of  grain.  The  year  1854  marked  the  culmination  of  bad 
crops  and  political  troubles  in  Europe.^     Immigration  to 

*  George  Ticknor  wrote  to  King  John  of  Saxony,  Nov.  20,  1855.  See 
Life,  Letters  and  Journals  of  George  Ticknor,  Vol.  II. 

"Your  short  crops  in  Europe  are  filling  the  great  valley  of  the  Missis- 
sippi with  population  and  wealth.  The  wheat  which  it  costs  the  great 
farmers  in  Ohio,  Illinois  and  Michigan  —  whose  population  in  1850  was 
above  three  millions  and  is  now  above  four  —  the  wheat  which  costs  S40 
to  those  great  farmers  to  raise,  they  can  sell  at  their  own  doors  for  above 
$100  and  it  is  sold  in  London  and  Paris  for  nearly  S300.  Indeed,  your  Euro- 
pean wars  are  not  only  making  the  States  in  the  valley  of  the  Mississippi 
the  preponderating  powers  in  the  American  nation  but  you  are  making  them 
the  granar>'  of  the  world,  more  than  ever  Egypt  and  Sicily  were  to  Rome. 
So  interchangeably  are  the  different  parts  of  Christendom  connected,  and 
so  certainly  are  the  fates  and  fortunes  of  each  in  one  way  or  another  depend- 
ent on  the  condition  of  the  whole.  The  war  in  the  Crimea  raises  the  price 
of  land  in  Ohio.  .  .  .  The  prol6taires  of  Paris  enrich  the  farmers  in  Illinois 
of  whose  existence  they  never  heard." 


454  A  HISTORY  OF  THE  AMERICAN  BAR 

the  United  States  was  at  its  highest,  having  grown  from 
114,371  in  1845  to  427,833.  These  immigrants,  and  the 
emigrants  from  New  England  sent  out  under  the  auspices 
of  the  New  England  Emigrant  Aid  Company  to  save  Kan- 
sas from  slavery,  were  about  to  develop  the  great  Western 
farm  lands. 

In  this  year  1854,  the  great  case  of  Seymour  v.  McCor- 
mick  (16  Howard,  480),  sustaining  the  validity  of  the 
;McCormick  reaping  machine  patent  was  decided  in  the 
United  States  Supreme  Court.  By  1855,  grain  elevator 
and  warehouse  law  began  to  come  into  prominence  in  the 
law  reports  m  Ohio,  Iowa  and  Wisconsin;^  and  by  1867, 
it  was  said  in  a  Massachusetts  case  —  Gushing  v.  Breed 
(14  Allen,  376):  "The  use  of  elevators  for  the  storage  of 
grain  has  introduced  some  new  methods  of  dealing;  but 
the  rights  of  parties  who  adopt  these  methods  must  be  by 
the  principles  of  the  Common  Law."  ^ 

In  the  early  years  of  this  period,  1830-1860,  the  only 
form  of  insurance  which  received  any  great  development 
was  marine  insurance,  and  the  law  reports  are  strikingly 
filled  with  cases  on  this  subject.  In  the  making  of  this  law, 
as  well  as  in  that  of  patents  and  copyrights.  Judge  Joseph 
Story  stood  at  the  head  of  all  judges. 

Arnould  in  the  preface  to  his  book  on  Marine  Insurance 
published  in  London  in  1848,  says: 

"I  have  resorted  generally  to  the  decisions  of  the  Ameri- 
can tribunals  on  the  many  novel  and  interesting  points 
in  the  law  of  marine  insurance  which  in  a  commerce  of 
vast  activity  and  a  seacoast  of  unrivalled  extent  seem 
to  be  continually  arising  for  their  adjudication.  In  the 
present  state  of  legal  knowledge,  no  work  professing  to 
treat  with  any  tolerable  degree  of  completeness  the  sub- 

1  See  especially  Chase  v.  Washburn,  i  Ohio  St.  244. 

2  See  also  articles  by  Oliver  Wendell  Holmes,  Jr.,  on  Grain  Elevator 
Cases  in  Amer.  Law  Review,  Vol.  VI. 


THE  PROGRESS  OF  THE  LAW,   1 830-1  S6o  455 

ject  could  avoid  frequent  reference  to  the  jurisprudence 
of  the  United  States.  The  names  of  Chancellor  Kent  and 
Mr.  Joseph  Story  have  indeed  an  European  celebrity  which 
would  make  apology  ridiculous  for  the  citation  of  their 
authority." 

Gradually,  however,  the  subject  of  fire  insurance  at- 
tained importance,  as  the  incorporation  of  mutual  fire  in- 
surance companies  became  general.  Yet  as  late  as  1837, 
a  report  of  a  Commission  in  ^Massachusetts  stated : 

''It  is  not  too  much  to  affirm  that  the  whole  law  of 
insurance  as  far  as  it  has  been  ascertained  and  established 
by  judicial  decisions  and  otherwise  may  now  be  stated  in 
a  text  not  exceeding  thirty  pages  of  the  ordinary  size." 

And  even  in  1852,  Chief  Justice  Shaw  said  in  Fogg  v. 
Middlesex  Fire  his.  Co.  (6  Cush.  337): 

"Fire  insurance  as  a  branch  of  legal  knowledge  is,  com- 
paratively speaking,  in  its  rudiments.  The  cases  on  marine 
insurance  throw  little,  if  any,  light  on  the  present  question. 
.  .  .  The  question  of  loss  by  lightning  is  very  summarily 
disposed  of  in  the  older  authorities  by  treating  electricity 
as  fire  from  heaven.  But  the  progress  of  knowledge  has 
led  to  juster  notions  of  the  nature  of  lightning  and  of 
course  to  different  conclusions  touching  its  legal  relations." 

And  in  the  same  year,  he  said  in  Scripture  v.  Lowell 
Mutual  Fire  Ins.  Co.  (10  Cush.  356): 

"Fire  insurance  has  become  so  important  in  the  business 
of  the  community  that  it  is  much  to  be  regretted  that  the 
practical  management  of  the  business  is  not  conducted 
with  more  care  and  skill  in  its  details  so  as  better  to  secure 
the  rights  of  the  parties  as  they  are  to  be  established  by 
the  contract  when  rightly  made  and  rightly  understood." 

The  advent  of  steamboats  and  railroads,  making  life 
more  hazardous,  was  contemporaneous  with  a  great  growth 


456  A  HISTORY  OF  THE  AMERICAN  BAR 

of  life  and  accident  insurance  companies  and  the  rise  of  an 
entirely  new  body  of  law. 

The  earhest  and  one  of  the  most  noted  life  insurance 
companies  was  chartered  in  Massachusetts  in  1818  —  the 
]Massachusetts  Hospital  Life  Insurance  Company.  Kent 
in  his  Commentaries  as  late  as  1844  (5th  edition)  said: 

"The  practice  in  Europe  of  life  insurance  is  in  a  great 
degree  confined  to  England,  and  it  has  been  introduced 
into  the  United  States.  It  is  now  slowly  but  gradually 
attracting  the  public  attention  and  confidence  in  our 
principal  cities." 

The  only  case  cited  by  him  on  the  subject  was  Lord  v. 
Dall,  decided  in  Massachusetts,  in  1810. 

Prior  to  1850,  five  cases  only  had  been  reported  as  de- 
cided by  the  State  and  Federal  courts  on  the  subject;  and 
"in  some  cases  of  the  States  no  case  has  as  yet  been  re- 
ported," said  a  writer  in  1872.^ 

The  first  question  Htigated  was  that  of  insurable  interest 
—  on  which  twelve  cases  were  decided  prior  to  i860,  the 
first  case  in  ^Massachusetts  arising  in  1852  —  Morrell  v. 
Trenton  Ins.  Co.  (10  Cush.  282),  and  the  leading  case  on 
the  subject  being  decided  by  Chief  Justice  Shaw  in  1856 
"on  the  rules  and  principles  of  the  Common  Law"  in 
Loomis  V.  Eagle  Life  and  Health  Ins.  Co.  (6  Gray,  396). 

On  the  important  questions  of  false  representation  and 
warranty  —  a  subject  so  much  litigated  later,  the  leading 
case  arose  in  1850  in  Massachusetts  —  Vase  v.  Eagle  Life 
and  Health  Ins.  Co.  (6  Cush.  42).  In  this  case  it  was 
said: 

"Insurance  on  life  was  formerly  held  to  be  unlawful, 
and  was  forbidden  in  some  foreign  countries  by  particular 
enactments  as  being  repugnant  to  good  morals  and  opening 

^  Digest  of  Life  and  Accident  Insurance  Cases,  by  John  R.  Sharpsteia 
(1872). 


THE   PROGRESS  OF  THE  LAW,   1830-1860  457 

a  door  to  abuses.  But  a  very  difTerent  view  of  the  subject 
is  taken  at  the  present  time.  Life  insurance  has  now  be- 
come a  very  common  and  a  very  extensive  business  and 
is  regarded  as  highly  beneficial  to  the  community." 

As  late  as  1873,  James  Schouler  in  his  book  on  Personal 
Property  wrote: 

"Like  the  historian  of  some  American  State  in  the  far 
West,  the  text  writer  on  life  insurance  finds  his  materials 
fresh,  and  modern  methods  at  work  in  shaping  them.  The 
lawyer  discarding  his  Coke,  Blackstone  and  Kent  might 
lay  his  hand  on  a  few  volumes,  perhaps  exactly  three  which 
are  hardly  yet  dry  from  the  press,  and  say  that  he  had  the 
whole  jurisprudence  of  life  insurance  as  a  special  subject 
so  far  as  the  English  and  American  Courts  had  laid  it  open. 
Far  different  will  it  be  twenty  years  hence." 

Between  1810  and  1830,  the  Supreme  Court  gave  de- 
cisions in  only  five  patent  cases;  and  the  Circuit  Courts 
in  only  thirteen,  most  of  which  were  decided  by  Judge 
Story,  in  the  First  Circuit.  The  real  history  of  patent  law 
in  the  United  States  dates  from  the  year  1836,  in  which 
year,  the  building  of  the  Patent  Office,  then  a  branch  of 
the  Department  of  State,  was  burned,  destro>ang  the 
models  and  records  of  the  old  system,  under  which  only 
10,020  patents  had  been  issued.  In  that  year  also,  a  com- 
plete revision  of  the  patent  laws  was  enacted  by  Congress 
and  the  United  States  Patent  OfiSce  (which,  in  1849,  be- 
came a  branch  of  the  Department  of  the  Interior)  was 
established. 

As  illustrative  of  the  increase  of  patent  htigation,  it  is 
to  be  noted  that  the  list  of  adjudicated  patents  contains 
18  patents  issued  between  1776  and  1815;  57  between 
1816  and  1835;  395  between  1836  and  1859  inclusive.^ 

Between  1835  and  1845,  a  very-  large  proportion  of  the 

^  Adjudicaled  Patents,  by  Lineas  D.  Underwood  (1907). 


4s8  A  HISTORY  OF  THE  AMERICAN  BAR 

patent  cases  in  the  country  were  tried  before  Judge  Joseph 
Story  in  the  United  States  Circuit  Court  in  Boston  — 
Benjamin  R.  Curtis,  Franklin  Dexter,  Charles  G.  Loring, 
Benjamin  Rand  and  Willard  Phillips  appearing  as  the 
principal  counsel. 

It  was  not  until  after  1845,  however,  that  patent  cases 
began  to  come  before  the  United  States  Supreme  Court  in 
any  number. 

One  of  the  early  famous  cases  was  decided  in  1842  — 
Prouty  V.  Ruggles  (16  Peters,  336),  in  which  Rufus  Choate 
argued  against  Frankhn  Dexter.  In  1846,  the  Woods- 
worth  planing  machine  patent  of  1828  was  involved  in 
Wilson  V.  Rousseau  (4  Howard,  646)  and  other  cases,  one 
being  argued  by  William  H.  Seward,  John  H.  B.  Latrobe  ^ 
and  Daniel  Webster  against  Thaddeus  Stevens;  another 
being  argued  by  Henry  D.  Gilpin  against  John  B.  Hen- 
derson and  Reverdy  Johnson. 

Stimpson's  grooved  railroad  rail  patent  of  1831  was  in- 
volved in  the  case  of  Stimpson  v.  Baltimore  and  Susqu£- 
hannah  R.  R.  Co.,  in  1850,  in  which  Brantz  Mayer  argued 
against  James  Campbell. 

Tatham's  lead  pipe  patent  of  1846  was  adjudicated  in 
1852  and,  in  1859,  in  Leroy  v.  Tatham  (14  Howard,  156;  22 
Howard,  132). 

In  1852,  one  of  the  most  noted  cases  in  all  patent  litiga- 
tion involving  one  of  the  most  bitterly  fought  patents  — 
Goodyear's  India  rubber  patent  of  1844,  was  decided  by 
Judge  Grier  in  the  United  States  Circuit  Court  in  Goodyear 
V.  Day  (2  Wall.  Jr.  283),  the  patent  being  upheld.  In 
this  case  Daniel  Webster  made  his  last  great  legal  argu- 
ment, Rufus  Choate  being  the  opposing  counsel. 

In  1853,  the  head  note  to  a  case  (15 Howard,  62)  announced 
the  decision  in  a  matter  of  immense  import  to  the  develop- 

^  Bom  in  1803. 


THE  PROGRESS  OF  THE  LAW,   1 830-1  S6o  459 

ment,  commercial,  political  and  legal,  of  this  country  — 
the  case  of  O'Reilly  v.  Morse.  "Morse  was  the  first  and 
original  inventor  of  the  electro  magnetic  telegraph  for 
which  a  patent  was  issued  to  him  in  1840  and  re-issued  in 
1848.  His  invention  was  prior  to  that  of  Steinhiel  of 
Munich  or  Wheatstone  or  Davy  of  England." 

The  counsel  were  James  Campbell  and  George  Harding 
of  Philadelphia  and  Archer  Gifford  of  New  Jersey  for 
Morse,  and  Ransom  H.  GUlet  of  New  York  and  Salmon  P. 
Chase  of  Ohio  for  O'Reilly.  The  practicability  of  this 
great  invention  had  been  proved  nine  years  before,  in  1844, 
by  a  line  put  in  operation  between  Baltmiore  and  Wash- 
ington, under  an  appropriation  from  Congress.^ 

The  next  year,  1854,  was  marked  by  the  decision  in  the 
case  of  Seymour  v.  McCormick  (16  Howard,  480),  uphold- 
ing the  McCormick  reaper  patents  of  1834,  1845  and  1847. 
The  counsel  were  Thaddeus  Stevens  of  Pemisylvania  and 
Reverdy  Johnson  of  Maryland  for  McCormick  and  Ransom 
H.  Gillet,  and  Henry  R.  Selden  of  New  York  for  Seymour. 
In  the  same  year  as  the  Dred  Scott  decision  (1857),  another 
case  involving  this  important  patent  was  decided  —  Sey- 
mour V.  McCormick  (19  Howard,  96)  ui  which  Edward  M. 
Dickerman  and  Reverdy  Johnson  appeared  for  McCormick 
and  H.  R.  Selden,  P.  H.  Watson  and  Edwin  'M.  Stanton  for 
Seymour.^ 

^  John  Quincy  Adams  says  in  his  Diary,  May  27,  1844,  "This  was  the 
day  on  which  the  two  Democratic  conventions  to  nominate  candidates  for 
the  offices  of  President  and  Vice  President  .  .  .  were  held  at  Bailtmore. 
...  By  the  new  invention  of  the  electro  magnetic  telegraph  of  Professor 
Morse  the  proceedings  of  those  bodies  .  .  .  were  made  known  here  at  the 
capital  and  announced  as  soon  as  received." 

For  an  interesting  account  of  this  early  telegraph  —  see  Piiblk  Men  and 
Events,  by  Nathan  Sargent,  Vol.  II  (1875). 

2  For  an  interesting  account  see  Lincoln  as  a  Lawyer,  by  Frederic  Trevor 
Hill. 

It  is  interesting  to  note  that  Abraham  Lincoln  acted  as  counsel  for  Mc- 


46o  A  fflSTORY  OF  THE  MIERIC.\N  BAR 

To  the  decade  of  1850-1860  belong  also  the  great  inven- 
tions of  the  breech  loading  fire  arm,  Elias  Howe's  sewing 
machine,  the  steam  fire  engine  and  the  fire  alarm 
telegraph. 

The  leading  American  law  book  on  the  subject  of  patents 
was  published  in  1837  by  Willard  Phillips. 

Between  181 5  and  1830  only  five  copyright  cases  had 
been  decided  in  the  United  States  Circuit  Courts  and  only 
three  in  the  State  courts.  It  was  not  until  18 19  that  the 
Circuit  Courts  obtained  jurisdiction  in  equity  in  cop}Tight 
matters;  and  as  late  as  1827,  Kent  wrote  in  his  Commen- 
taries (Vol.  II):  ''There  are  no  decisions  in  print  on  the 
subject  and  we  must  recur  for  instruction  to  principles 
settled  by  the  EngHsh  decisions  under  the  statute  of  Anne 
and  which  are  no  doubt  essentially  applicable  to  the  rights 
of  authors  under  the  acts  of  Congress." 

Charles  J.  Ingersoll,  the  noted  Philadelphia  lawyer, 
wrote  in  1823:  ^ 

"  It  is  to  be  regretted  that  literary  property  here  is  held 
by  an  imperfect  tenure,  there  being  no  other  protection 
for  it  than  the  provisions  of  an  inefficient  act  of  Congress, 
the  impotent  offspring  of  an  obsolete  English  statute. 
The  inducement  to  take  copyrights  is  therefore  inadequate, 
and  a  large  proportion  of  the  most  valuable  American 
books  are  published  without  any  legal  title.  Yet  there 
were  135  copyrights  purchased  from  January,  1822,  to 
April,   1823."  2 

Cormick,  with  Reverdy  Johnson  and  Edwin  M.  Dickerman,  against  Edwin 
]M.  Stanton  and  George  Harding  in  the  United  States  Circuit  Court  in 
McCormick  v.  Manny  (6  McLean,  529)  in  1856. 

^  See  Review  of  A  Discourse  concerning  the  Influence  of  America  on  the 
Mind,  Oct.  18,  1823,  by  C.  J.  Ingersoll,  by  Jared  Sparks,  No.  Amer.  Rev., 
Vol.  XVII  (1824). 

2  The  condition  of  the  law  of  copyright  fairly  illustrates  the  general 
conditions  of  literature  in  the  United  States  at  the  time.  Thus,  prior  to  1830, 
the  only  works  of  American  literature  of  any  considerable  fame  that  had 


THE  PROGRESS  OF  THE  LAW,   1 830-1 860  461 

The  law  of  copyright  was  practically  formulated  by 
Judge  Joseph  Story  in  his  Circuit  Court  decisions  1830- 
1845/  and  by  the  United  States  Supreme  Court  in  the  great 
case  of  Whcaton  v.  Peters  (8  Peters,  591),  in  1834,  in  which 
Elijah  Paine  and  Daniel  Webster  appeared  for  Henry 
Wheaton  (the  former  Supreme  Court  Reporter)  and  Charles 
J.  Ingersoll  and  John  Sergeant  for  Richard  Peters  (the 
then  Reporter). 

Few  cases  came  before  the  Supreme  Court  on  this  sub- 
ject —  the  most  important  being  Stevens  v.  Gladding,  in 
1854  (17  Howard,  447). 

Another  branch  of  the  law  which  practically  originated 
in  the  years  1 830-1 860  was  that  of  trademarks. 

been  published  were:  Webster^ s  Dictionary,  in  1806,  Washington  Irving's 
Knickerbocker  History  of  New  York,  in  1809,  his  Sketch  Book  in  1819,  his  Life 
of  Columbus,  ia  1S20,  and  his  Conqiiest  of  Granada  in  1829.  In  1817,  Bryant's 
Thanalopsis  had  appeared,  and  in  the  same  year  Wirt's  Life  of  Patrick 
Henry.  In  1821,  Fenimore  Cooper  wrote  The  Spy,  and  in  1826,  The  Last 
of  the  Mohicans.  In  1827,  Poe's  Tamerlane  and  Goodrich's  Peter  Parley's 
Tales  were  published.    In  1828,  came  Hawthorne's  first  book,  Fanshaive. 

It  may  be  noted  that  coincident  with  the  rise  of  copyright  law  came 
the  great  development  of  American  literature  and  American  journalism. 
The  years  1835-1860  witnessed  the  production  of  the  works  of  Emerson, 
Hawthorne,  Lowell,  Longfellow,  Prescott,  Motley,  Bancroft,  Hildreth  and 
Whittier. 

The  North  American  Review,  founded  in  1815,  was  still  in  existence. 
The  American  Quarterly  Review  was  published  from  1827  to  1837;  the 
Knickerbocker  Magazine  from  1833  to  1858.  Of  the  great  newspapers  the 
New  York  Herald  was  first  published  in  1835,  yet  by  1846  it  had  a  circula- 
tion of  only  15,000.  The  New  York  Tribune  started  in  1841;  the  New 
York  Evening  Post  in  1842  with  a  circulation  of  2,500;  the  Springfield  Daily 
Republican  in  1844. 

In  184 1,  Graham's  Magazine  was  first  published;  in  1842,  the  Southern 
Quarterly  Review;   and  in  1S45,  the  American  Review. 

In  1850,  Harper's  Monthly  Magazine  was  established;  in  1853,  Putnam's 
Monthly  Magazine;  in  1836,  Harper's  Weekly;  and  in  1857,  the  Atlantic 
Montldy. 

1  See  Gray  v.  Russell,  i  Story,  16;  Folsom  v.  Marsh,  2  Story,  113  (1841); 
Emerson  v.  Davies,  3  Story,  779. 


462  A  HISTORY  OF  THE  AMERICAN  BAR 

The  first  of  the  trademark  cases  in  the  history  of  the 
countr}^  ( Sjtowden  v.  Noah) ,  a  motion  in  the  New  York 
Court  of  Chancery  by  the  owner  of  a  newspaper  called 
Th€  National  Advocate,  for  an  injunction  against  the 
owner  of  The  New  York  National  Advocate,  was  tried 
before  Chancellor  Sandford,  in  January,  1825. 

In  1837,  the  leading  case  of  Thomson  v.  Winchester  was 
decided  in  Massachusetts  (19  Pick.  214)  in  which  Theoph- 
ilus  Parsons  and  Charles  Sumner  were  counsel  for  the 
defendant.  Chief  Justice  Shaw  held  that  it  was  a  fraud 
to  make  and  sell  medicines  as  and  for  medicines  made  and 
prepared  by  the  plaintiff  —  this  decision  being  the  founda- 
tion of  the  law  of  unfair  trade  in  this  country.  In  1840, 
in  Bell  v.  Locke  in  New  York  (8  Paige,  75)  the  court  was 
asked  to  enjoin  the  use  of  a  trade  name.  In  1844,  Judge 
Story  in  the  United  States  Circuit  Court  in  Taylor  v. 
Carpenter  (3  Story,  458)  granted  the  first  injunction  ever 
issued  in  this  country  restraining  the  infringement  of  a 
real  trademark.  From  that  year,  the  law  may  be  said  to 
have  been  definitely  established.  The  first  act  for  the  pro- 
tection of  trademarks  was  passed  in  Massachusetts  in 
1852,  c.  197.1 

The  list  of  trademark  and  trade  name  cases  between 
1845  3-^^d  i860  numbers  only  36,  of  which  28  were  de- 
cided in  inferior  courts  of  New  York,  5  in  United  States 
Circuit  Courts,  2  in  Rhode  Island  and  i  in  Pennsylvania.^ 

The  law  as  to  trade  names  was  practically  fixed  by  the 
noted  decision  of  Marsh  v.  Billings  in  Massachusetts  in 
1 85 1  (7  Cush.  322).  This  was  an  action  of  trespass  on  the 
case  alleging  injuries  from  the  use  by  the  defendant  of  the 
words  "Revere  House"  in  transporting  passengers  and 
baggage.     The  court  said: 

1  See  Ames  v.  King,  2  Gray,  382  (1854). 
*  Trademark  Cases,  by  Rowland  Cox  (1892). 


THE  PROGRESS  OF  THE  LAW,   1830-1860  463 

"The  principle  involved  is  one  of  much  importance 
to  the  plaintiffs  and  to  the  public.  But  the  principle  is  by 
no  means  novel  in  its  demands  .  .  .  substantially  the 
same  wliich  has  been  repeatedly  recognized  and  acted 
on  by  courts  in  regard  to  fraudulcni  use  of  trademarks 
and  regarded  as  of  much  importance  in  a  mercantile  com- 
munity." 

As  before  stated,  this  era  was  especially  characterized 
by  the  increasing  recognition  paid  to  individual  rights  and 
the  protective  safeguards  thrown  about  the  weaker  classes. 

No  portion  of  the  community  was  more  favored  by  the 
development  of  the  law  between  1830  and  i860  than  the 
debtor  class. 

In  the  argument  of  David  Daggett  in  Sturgis  v.  Crownin- 
shield,  in  1819,  it  is  said  that, "no  acts,  properly  called  bank- 
rupt laws,  have  been  passed  in  more  than  four  or  five 
States.  Rhode  Island  had  an  act  .  .  .  (adopted  in  1756) 
by  which  the  debtor  might,  on  application  to  the  Legisla- 
ture, be  discharged  from  his  debts.  In  New  York,  a  law  of 
the  same  character  has  been  in  operation  since  the  year 
1755,  and  also  in  Maryland  for  a  long  period  (since  1774)- 
In  Pennsylvania,  a  bankrupt  law  operating  in  the  city  and 
county  of  Philadelphia  existed  for  two  or  three  years;  and 
in  Connecticut,  the  Legislature  has  often  granted  a  special 
act  of  bankruptcy  on  application  of  individuals.  But  in 
all  the  other  States,  these  laws  on  this  subject  have  been 
framed  with  reference  to  the  exemption  of  the  body  from 
imprisonment,  and  not  to  the  discharge  of  the  contract." 

The  first  general  insolvent  law  in  the  United  States  dis- 
charging the  debts  as  well  as  the  person  of  the  debtor  was 
that  of  New  York  in  1784,  and  later  more  progressive 
statutes  had  been  passed  in  1801,  181 1,  1813,  1817  and 
1823.  So  undecided,  however,  was  pubHc  opinion  as  to 
the  value  of  such  laws  that,  as  late  as  1819,  Chancellor 


464  A  HISTORY  OF  THE  AMERICAN  BAR 

Kent  and  the  judges  of  the  New  York  Supreme  Court  In 

a  report  to  the  Legislature  said:  ^ 

"Judging  from  their  former  experience  and  from  obser- 
vation in  the  course  of  their  judicial  duties,  they  were  of 
opinion  that  the  insolvent  law  was  the  source  of  a  great 
deal  of  fraud  and  perjury.  They  were  apprehensive  that 
the  evil  was  incurable  and  arose  principally  from  the  in- 
firmity inherent  in  every  such  system  which  .  .  .  had  a 
powerful  tendency  to  render  him  (the  debtor)  heedless  in 
the  creation  of  debt  and  careless  as  to  payment  .  .  .  and 
probably  ever  must  be,  from  the  very  nature  of  it,  pro- 
ductive of  incalculable  abuse,  fraud,  and  perjury,  and 
greatly  injurious  to  public  morals." 

Nevertheless,  the  commercial  distresses  due  to  the 
financial  crises  after  the  close  of  the  War  of  181 2,  and  dur- 
ing the  depreciated  currency  period  of  1815  to  1825,  caused 
constant  pressure  for  rehef  to  the  debtor  class.  The  un- 
certainty whether  or  how  far  the  United  States  Supreme 
Court  would  sustain  the  constitutionaHty  of  State  insol- 
vent laws  produced  great  confusion  and  hesitation  in 
legislation  until  the  final  decision  of  the  question  in  Ogden 
v.  Saunders,  in  1827.  As  Kent  wrote,  in  that  year:  "The 
laws  of  the  individual  States  .  .  .  have  hitherto  been  un- 
stable and  fluctuating,  but  they  will  probably  be  redi- 
gested  and  become  more  stable,  since  the  decisions  of  the 
Supreme  Court  have  at  last  defined  and  fixed  the  fine 
around  the  narrow  inclosure  of  State  jurisdiction."  ^ 

So  progressive  a  State  as  Massachusetts,  however,  had 
no  insolvency  law  until  as  late  as  1838;  but  an  antique 
and  comphcated  system  of  assignments  for  benefit  of 
creditors  had  prevailed  for  many  years,  which  in  its  work- 
ings had  proved  most  unjust  and  productive  of  fraud .^ 

1  Kent's  Commentaries,  Vol.  II,  p.  324,  note  b  (ist  ed.  1827). 

2  Kent's  Commentaries,  Vol.  II,  p.  326,  note  a  (ist  ed.  1827). 

'  See  for  grapliic  description  of  actual  conditions,  Law  Reporter,  Vol. 
11  (1839). 


THE  PROGRESS  OF  THE  LAW,   1830-1860  465 

Creditors  raced  for  the  property  of  their  debtor;  a  general 
assignment  protected  only  those  creditors  who  assented 
to  it;  and  fraudulent  assignments  intended  to  benefit  the 
debtor  rather  than  to  protect  his  creditors  were  the  rule. 

In  1 83 1,  Charles  Jackson,  Samuel  Hubbard  and  John  B. 
Davis  were  appointed  Commissioners  to  consider  the  sub- 
ject of  an  insolvent  law  and  they  prepared  a  draft.  For 
seven  years,  however,  the  Legislature  failed  to  take  any 
favorable  action.  After  the  great  financial  panic  of  1837, 
the  general  distress  among  debtors  was  so  great  that  the 
State  enacted  this  law,  which  proved  so  excellent  and  so 
Uberal  that  it  served  as  a  model  for  similar  acts  in  other 
States  and  for  future  United  States  bankruptcy  statutes. 

By  1845,  most  of  the  States  had  enacted  insolvent  laws; 
but  there  was  great  diversity  in  the  extent  to  which  these 
laws  were  operative.  Thus  in  IMaine,  New  Hampshire, 
Virginia  and  Kentucky,  they  were  confined  to  debtors 
charged  on  execution.  In  New  Jersey,  Delaware,  Mary- 
land, Tennessee,  North  Carolina,  South  CaroUna,  Georgia, 
Alabama,  IMississippi  and  Illinois,  they  extended  only  to 
debtors  in  prison  on  mesne  or  final  process.  In  New  York, 
Massachusetts,  Connecticut,  Rhode  Island,  Pennsylvania, 
Ohio,  Indiana,  IMissouri  and  Louisiana,  they  extended  gen- 
erally to  debtors  in  or  out  of  prison. 

In  some  of  these  States,  like  New  Jersey,  Connecticut, 
Ohio  and  others,  the  laws  were  insolvent  laws  in  the  old 
technical  meaning  of  the  term,  i.  e.  laws  discharging  the 
debtor  from  imprisonment  only.  In  other  States,  like 
Massachusetts,  New  York  and  others,  these  laws  though 
termed  insolvent  were  really  bankrupt  laws,  in  that  they 
discharged  the  debt  itself.^ 

Kent  thus  described  the  confused  condition  as  late  as 
1840: 

1  See  Kent's  Comtncttlartes,  Vol.  11,  p.  394'(5tli  ed.,  1844). 


466  A  fflSTORY  OF  THE  AMERICAN  BAR 

''The  Commissioners  appointed  to  revise  the  civil  code 
in  Pennsylvania,  in  their  Report  in  January,  1835,  complained 
in  strong  terms  of  the  existing  state  of  things.  Congress 
will  not  exert  their  constitutional  power  and  pass  a  bank- 
rupt law,  and  no  State  can  pass  a  bankrupt  or  insolvent 
law  except  so  far  as  regards  its  own  citizens;  and  even 
then,  only  in  relation  to  contracts  made  after  the  passage 
of  the  law.  Foreign  creditors  and  creditors  in  other  States 
cannot  be  barred,  while  State  creditors  may  be.  The  for- 
mer preserve  a  perpetual  lien  on  after-acquired  property 
except  so  far  as  the  statutes  of  limitations  interpose.  State 
bankrupt  and  insolvent  laws  cannot  be  cherished  under 
such  inequalities." 

It  was  to  remedy  this  condition  of  affairs  that,  after  a 
thirty  years'  struggle.  Congress  finally  enacted  the  National 
Bankruptcy  Law  in  1 841,  which  went  into  effect  February  i, 
1842,  and  was  repealed  in  1843.  ^^  was  however  much 
more  extended  in  its  provisions  than  the  earHer  National 
Bankruptcy  Law  of  1800  and  than  the  English  bankruptcy 
acts,  as  it  was  not  confined  to  "traders"  and  also  included 
cases  of  voluntary  appHcation.^ 

The  enactment  of  this  law  was  largely  due  to  the  great 
distress  following  the  panic  of  1837  and  President  Tyler's 
veto  of  the  Bank  Act.  There  had  been  tremendous  ex- 
pansion of  credit  and  speculation  by  private  individuals 
as  well  as  by  the  States  themselves,  especially  in  the 
South  and  West.  The  rage  for  railroad  building,  1830- 
1840,  and  the  nimierous  subscriptions  by  means  of  State 
stock  and  bond  issues  made  by  the  States  to  induce  rail- 
road construction  had  piled  up  State  debts  to  such  an  ex- 
tent that  many  States  had  repudiated  their  obligations.^ 

^  See  Griswold  v.  Prali,  9  Mete.  16  (1845),  for  a  good  description  of  the 
history  of  bankruptcy  and  insolvency  legislation  and  the  reasons  for  and 
against  it  in  the  United  States  and  in  Massachusetts. 

2  The  iirst  instance  of  the  use  of  the  term  "repudiation  "  was  in  an  offi- 
cial message  of  the  Governor  of  Mississippi  advising  this  course.    In  1853, 


THE  PROGRESS  OF  THE  LAW,   1830-1860  467 

In  this  period,  the  position  of  the  debtor  class  was  still 
further  alleviated  by  the  gradual  adoption  of  statutes 
aboUshing  the  old  harsh  system  of  imprisonment  for  debt.^ 
Such  imprisormient  had  already  been  abolished  outright 
by  Kentucky  in  182 1  and  by  New  York  in  183 1.  Four 
States,  Maine,  New  Hampshire,  Massachusetts  and  South 
Carolina,  soon  abolished  imprisonment  for  debts  of  sums 
less  than  $5  to  $30.  Statutes  practically  abolishing  im- 
prisonment for  debt  were  passed  in  Vermont,  Ohio  and 
jMichigan  in  1838,  in  Alabama  in  1839,  in  New  Hampshire 
and  Tennessee  in  1840,  in  Pennsylvania  and  Connecticut 
in  1842.  By  the  year  1857,  when  Massachusetts  by  statute 
provided  that,  "imprisonment  for  debt  except  in  cases  of 
fraud  is  hereby  abolished  forever,"  practically  all  the  States 
had  enacted  this  rehef  to  debtors.^ 

by  decision  of  the  Supreme  Court  of  the  State,  Mississippi  was  forced  to  pay 
its  repudiated  bonds.    See  Law  Reporter,  Vol.  XVI. 

See  also  Repudiation,  by  Benjamin  R.  Curtis,  North  Amer.  Rev.,  Jan- 
uary, 1844. 

As  George  Ticknor  wrote  May  30,  1842: 

"Large  portions  of  the  country  are  suflering.  At  the  South  and  South- 
west where  individuals  and  States  borrowed  rashly  and  unwisely  there  is 
great  distress.  To  individuals  the  Bankrupt  Law  is  bringing  appropriate 
relief.  But  to  States  the  process  must  be  more  slow.  Some  of  them  like  Illi- 
nois and  Indiana  never  will  pay.  They  have  not  the  means  and  cannot  get 
the  means.  They  are  honest  and  hopeless  bankrupts  and  \^•ill  do  what  they 
can.  Others  like  Mississippi  which  repudiate  its  obligations  so  shamelessly 
will  be  compelled  to  pay  by  the  force  of  public  opinion.  .  .  .  The  lesson 
will  have  been  an  useful  one." 

'  Kent  wrote  in  his  Commentaries,  in  1827:  "The  power  of  imprison- 
ment for  debt  in  cases  free  from  fraud,  seems  to  be  fast  going  into  annihila- 
tion in  this  country,  and  is  considered  as  repugnant  to  humanity,  policy 
and  justice." 

The  constitutionality  of  State  laws  abolishing  imprisonment  for  debt 
was  upheld  in  Mason  v.  Ilaile,  12  Wheat.  370,  in  1827. 

2  See  McMaster's  History  of  the  United  States,  Vol.  VI. 

See  Imprisonment  for  Debt,  by  .A.sa  Kinnc  (1842). 

Kent's  Commentaries,  Vol.  II  (5th  ed.,  1844). 


468  A  HISTORY  OF  THE  AMERICAN  BAR 

Another  step  in  advance  for  the  protection  of  debtors 
was  the  enactment  of  homestead  laws  exempting  from  ex- 
ecution a  homestead  for  the  shelter  and  protection  of  the 
family  occupying  it.  The  first  of  these  hberal  statutes  was 
passed  by  the  RepubHc  of  Texas  in  1836;  the  next  in  Ver- 
mont in  1849.  Most  of  the  other  States  soon  enacted  such 
laws.^ 

But  it  was  not  only  by  statutes  that  the  law  showed  its 
tender  side  towards  debtors.  The  trend  of  judicial  decision 
was  distinctly  favorable  to  them. 

Thus  Kent  in  1844  said:  ^ 

*'In  noting  the  vacillating  and  contradictory  decisions 
on  the  point  of  the  validity  of  voluntary  gifts  and  con- 
veyances of  property  by  persons  indebted  at  the  time,  it 
is  painful  to  perceive,  in  so  many  instances,  the  tendency 
to  a  lax  doctrine  on  the  subject.  The  relaxation  goes  to 
destroy  conservative  principles  and  to  commit  the  sound, 
wholesome  and  stem  rules  of  law  to  the  popular  disposal 
and  unstable  judgment  of  jurors." 

Another  instance  of  the  tenderness  of  the  new  law 
towards  the  interests  of  debtors  is  to  be  seen  in  the  growth 
of  the  doctrine  of  imphed  warranties  on  sales  of  personal 
property  —  a  development  which  Kent  said,^  "trenched 
deeply  upon  the  plain  maxim  of  the  common  law,  caveat 
emptor;  and  I  cannot  but  think  that  the  old  rule  and 
the  old  decisions  were  the  safest  and  wisest  guides;  and 
that  the  new  doctrine  .  .  .  will  lead  to  much  difficulty 
and  vexatious  Htigation  in  mercantile  business." 

In  still  another  form,  the  debtor  was  protected  through 
the  relaxation,  by  the  courts  of  Massachusetts  and  of 
several  other  States,  of  the  old  EngHsh  law  that  a  sale  of 

1  Law  of  Homestead,  by  Seymour  D.  Thompson. 

2  Kenfs  Commentaries,  Vol.  II,  p.  442,  note  (sth  ed.,  1844). 
»  Kenfs  Commentaries,  Vol.  II,  p.  479.  note  (5th  ed.,  1844). 


THE  PROGRESS  OF  THE  LAW,   1 830-1 860  469 

chattels  without  delivery  was  conclusive  evidence  of  fraud 
upon  creditors. 

"This  tendency,"  said  Kent,  "is  greatly  to  be  regretted. 
.  .  .  Since  the  remedy  against  the  property  of  the  debtor 
is  now  almost  entirely  deprived  of  the  auxiliary  coercion 
intended  by  the  arrest  and  imprisonment  of  his  person,  the 
creditor's  naked  claim  against  the  property  ought  to  re- 
ceive the  most  effective  support  and  every  rule  calculated 
to  prevent  the  debtor  from  secreting  or  masking  it  to  be 
sustained  with  fortitude  and  vigor." 

The  bare  rudiments  of  legal  protection  to  a  class  which 
had  hitherto  received  little  protection  from  the  law  —  the 
laboring  class  —  developed  in  this  era,  although  even  by 
i860  very  slight  recognition  to  the  rights  of  the  laborer 
had  been  shown  by  the  courts. 

Three  early  cases  in  inferior  courts  in  New  York  and 
Pennsylvania  ^  had  held  that  associations  of  workingmen 
to  raise  prices  or  wages  were  illegal  in  themselves;  but 
this  stringent  Common  Law  doctrine  was  overturned  in 
Pennsylvania  as  early  as  1821  in  Com.  v.  Carlisle  (Bright- 
ley's  Reports,  36) ;  and  in  the  great  leading  case  of  Com.  v. 
Hunt  in  Massachusetts,  in  1842  (4  Mete.  iii).  This  case 
involved  the  legality  of  the  acts  of  the  labor  organization 
of  the  Journeymen  Bootmakers  Society,  and  was  argued 
by  Attorney-General  James  T.  Austin  against  Robert 
Rantoul,  Jr.  Chief  Justice  Shaw  delivered  one  of  his  great- 
est opinions,  upholding  the  right  of  laborers  to  combine 
for  proper  purposes  without  being  liable  to  indictment  for 
criminal  conspiracy.    A  case  in  New  York,  in  1835,  arising 

^  Boot  and  Shoemakers  of  Philadelphia.    See  Pamphlet  Report  in  1806. 
People  V.  Melvin,  2  Wheeler's  Criminal  Cases,  262  (N.  Y.),  in  1824. 
Journeymen  Cordwaincrs  of  Pittsburg.    See  Pamphlet  Report  in  181 1. 
Journeymen  Cordwainers  of  New  York,  in  iSio.     See  Sampson's  Dis- 
course, by  Pishey  Thompson  (1826). 


470  A  HISTORY  OF  THE  AMERICAN  BAR 

under  a  special  statute  had  been  decided  to  the  contrary  — 
People  V.  Fisher  (14  Wendell  i).^ 

An  earher  labor  case  in  Massachusetts,  in  1827,  — 
Boston  Glass  Manufacturing  Co.  v.  Binney  (4  Pick.  425), 
argued  by  William  Sullivan  and  Samuel  Hubbard  against 
Lemuel  Shaw  had  involved  the  question  of  hability  for 
enticing  workmen  from  the  plaintiff's  employ. 

These  cases  and  those  cited  in  the  notes  were  practically 
all  the  labor  cases  in  the  country  which  occurred  prior  to 
1867.2 

The  change  in  the  attitude  of  the  law  during  this  period 
towards  the  status  and  rights  of  married  women  was  very 
remarkable. 

The  first  liberal  step  in  breaking  down  the  harsh  Com- 
mon Law  doctrine  as  to  the  legal  identity  of  husband  and 
wife  was  in  Mississippi,  in  1839,  by  the  passage  of  a  statute 
allowing  to  a  wife  separate  ownership  of  property.  Massa- 
chusetts followed,  in  1845,  by  an  act  authorizing  a  married 
woman  to  hold  property  to  her  separate  use  by  express 
ante-nuptial  agreement;  ^  and  by  statutes  in  1855  and  1857 
in  that  State,  the  rights  of  married  women  were  extended 
so  as  to  give  them  unrestricted  authority  to  hold  property, 
to  contract,  to  convey  and  otherwise  to  act  like  a  feme  sole. 

Between  1844  and  i860,  twenty-one  States  had  enacted 
similar  legislation,  although  few  of  them  had  granted  as 
great  freedom  to  the  wife  as  had  Massachusetts.^    The 

*  See  also  Journeymen  Tailors  of  Philadelphia.  See  Pamphlet  Report 
(1827). 

Hartford  Carpet  Weavers.    See  Pamphlet  Report  (1836). 

^  See  Bowen  v.  Maiheson  (14  Allen,  499)  in  Massachusetts,  in  1867;  and 
Stevedores'  Association  v.  Walsh  (2  Daly,  i)  in  New  York,  in  1867. 

'  See  Beat  v.  Warren,  2  Gray,  457  (1854). 

^  For  a  history  of  the  spread  of  legislation  of  this  nature,  see  Bishop's 
Law  of  Married  Women,  Vol.  II  (1875);  Willard  v.  Easlham,  15  Gray  (i860); 
and  Lord  v.  Parker,  3  Allen,  129  (1861). 


THE  PROGRESS  OF  THE  LAW,   183(^1860  471 

first  American  law  book  on  the  subject,  since  Judge  Tap- 
ping Reeve's  book  on  Domestic  Relatiotis,  appeared  in  1861 
—  William  H.  Cord's  Treatise  on  Legal  and  Equitable  Rights 
of  Married  Women.  As  late  as  1873,  Joel  P.  Bishop's  Law 
of  Married  Women  says:  "No  first  class  text  book  has  ever 
been  written  upon  the  subject."  ^ 

The  chief  advances  in  criminal  law  during  this  period 
were  in  the  abolition  of  the  death  penalty  for  many  crimes; 
the  reform  and  amelioration  in  the  sentences  and  in  the 
methods  of  treatment  in  prisons  and  reformatories;  and 
the  change  in  the  law  of  evidence  giving  the  defendant  the 
right  to  testify. 

Among  the  new  doctrines  of  criminal  law  estabUshed  by 
the  courts,  the  one  of  chief  importance  was  the  settlement 
of  the  law  as  to  insanity  as  a  defense  —  in  England  by 
McNaughten's  Case  in  the  House  of  Lords  in  1843  -  — 
in  the  United  States  by  two  famous  cases;  one  in 
Massachusetts  in  1844,  Com.  v.  Rogers  (7  Mete.  500). 
G.  T.  Bigelow  and  G.  Bemis  being  counsel  and  Chief 
Justice  Shaw  delivering  one  of  his  most  notable  opin- 
ions; the  other  in  New  York  in  1847,  People  v.  Freeman 

»  The  only  books  other  than  the  above  written  previous  to  187 1  on  the 
subject  were  as  follows  —  all  English: 
Baron  and  Feme  (1700). 
Law  of  Marriage  and  other  Family  Seltlements,  by  Edward  G.  Atherley 

(1813). 

Essay  on  Equitable  Rights  of  Married  Women,  by  James  Clancy  (1819). 

Law  of  Properly  arising  from  Relation  of  Husband  and  Wife,  by  R.  S. 
Donniston  Roper  (1820). 

Rights  and  Liabilities  of  Husband  and  Wife  at  Law  and  in  Equity,  by  John 
F.  MacQueen  (1849). 

Law  of  Property  as  arising  from  the  Relation  of  Husband  and  Wife,  by 
S.  S.  Bell  (1849). 

2  Even  as  late  as  1827  Lord  Tenterden  had  said  in  Brown  v.  Godrall 
(3  Carr.  &  Pa>-ne,  30),  that  "no  person  can  be  suffered  to  set  up  his  own 
lunacy  as  a  defense  "  in  a  civil  action. 

See  also  article  on  Insanity,  in  Western  Jurist,  Vol.  IV. 


472  A  HISTORY  OF  THE  AIMERICAN  BAR 

(4  Denio,  29),  in  which  William  H.  Seward  established 
his  legal  reputation  by  his  brilliant  defense  of  the  insane 
negro  defendant. 

Perhaps  one  of  the  most  necessary  revolutions  in  the  old 
Common  Law  doctrines  brought  about  in  this  period  was 
the  great  reform  in  the  law  of  evidence  —  especially  in 
the  removal  of  the  rules  which  barred  a  witness  from 
testif>-ing  because  of  interest,  and  because  of  being  a 
party. 

The  old  Common  Law  bar  of  interest  had  become  ab- 
surd in  its  application  to  modern  trials.  It  resulted  in 
many  instances  in  the  complete  exclusion  of  the  truth  as 
to  the  facts  of  a  case.  In  other  instances,  it  was  a  direct 
inducement  to  fraud,  as  persons  desired  as  witnesses,  and 
likely  to  be  excluded  on  grounds  of  interest,  made  releases 
of  their  interest  before  the  trial,  only  to  receive  a  re-grant 
of  the  interest  so  released,  after  the  trial  was  over.  In 
many  directions  the  Legislature  had  removed  the  bar, 
quite  illogically,  as  to  certain  classes  of  witnesses. 

The  reform  in  this  direction  had  started  in  England  in 
1843  in  Lord  Denman's  Act,  which  abrogated  the  dis- 
ability of  a  witness  for  interest  or  infamy.  This  Act  was 
spoken  of  by  the  Law  Reporter  in  1844  (Vol.  VI)  "as  justly 
regarded  as  the  greatest  innovation  of  the  day,"  and 
termed  by  Brougham  "the  greatest  measure  under  the 
head  of  judicial  procedure  since  the  Statute  of  Frauds." 
New  York  followed  this  with  an  act,  in  1846,  removing  the 
bar  of  rehgious  incapacity  from  witnesses,  and,  in  1848,  the 
bar  of  interest.  Michigan  adopted  the  English  statute  in 
1846;   and  Connecticut  passed  a  similar  act  in  1848. 

One  further  step  remained  to  be  taken  —  the  removal 
of  the  unreasonable  disqualification,  as  witnesses,  of  par- 
ties to  the  suit.  This  reform  was  bitterly  antagonized  by 
the  Bar  for  many  years,  chiefly  on  the  ground  that  it  would 


THE  PROGRESS  OF  THE  LAW,   1 830-1 860  473 

be  a  tremendous  inducement  to  perjury,     England  again 
led  the  way  by  the  passage  of  Lord  Brougham's  Act  in 

1850.^ 

By  a  statute  in  185 1  known  as  the  Practise  Act 
(substantially  a  Code  of  Civil  Procedure),  Massachusetts 
allowed  the  filing  of  interrogatories  to  parties  to  a  suit, 
and  abolished  the  bar  of  interest  and  infamy.  In  1853, 
Ohio  adopted  in  full  the  provisions  of  Lord  Brougham's 
Act.  Connecticut  had  already  anticipated  the  Eng- 
lish statute  by  an  act  passed  in  1848.  Massachusetts 
and  Maine  followed  in  1856;  New  York,  in  1857; 
and  Congress  passed  an  act  for  the  Federal  courts  in 
1864. 

In  1864,  Maine  became  a  leader  in  this  department  of 
the  law  by  allowing  defendants  in  criminal  cases  to  testify. 
Massachusetts  passed  a  similar  statute  in  1866,  and  New 
York  in  1867.  Gradually  this  reform  became  general  over 
the  United  States,  defendants  in  criminal  cases  in  the 
Federal  courts  being  allowed  to  testify  by  an  act  in 
1878.2 

It  would  be  interesting  to  trace  the  effect  on  the  doc- 
trines of  substantive  law,  of  this  exclusion  from  the  witness 
stand  of  parties  who  had  the  chief  and  the  best  knowledge 
of  the  facts  in  conflict.  That  the  substantive  law  was  con- 
siderably moulded  by  the  conditions  imposed  by  this  rule 

1  See  article  on  Law  of  Evidence  in  Southern  Law  Review,  N.  S.  (1875). 
Disqualification  of  Parties  as    Witnesses    in   American    Law    Register, 

Vol.  V  (1856-1857)  saj-ing, 

"We  rejoice  to  see  the  spirit  of  reform  is  at  work." 

See  a  brilliant  and  interesting  series  of  articles  in  American  Jurist,  Vols. 
I  to  XIII  (1829-1835),  advocating  these  changes  in  the  law  of  evidence. 
See  also  article  in  1851  in  the  Law  Reporter,  Vol.  XIV;  and  also  articles 
in  the  same  volume  explaining  the  workings  of  the  new  English  Act  of 
1850. 

2  See  A  Chapter  of  Legal  History,  by  James  B.  Thayer,  Harvard  Law 
Review,  Vol.  IX  (1895). 


474  A  fflSTORY  OF  THE  AMERICAN  BAR 

of  e\'idence,  there  can  be  no  question.    The  subject  may 
be  a  fruitful  one  for  some  writer  of  legal  histoty.^ 

^  A  minor  illustration  may  be  given  of  the  results  of  this  rule  of  evi- 
dence as  applied  to  the  development  of  modem  economic  conditions.  In 
1846,  when  railroad  law  was  being  formulated  every  day  in  the  courts,  as  a 
new  branch  of  law,  a  plaintiff  failed  to  recover  against  a  railroad  company 
for  loss  of  his  baggage  due  to  the  railroad's  negligence,  simply  on  the  ground 
that  he  alone  knew  what  was  in  his  trunk,  and  yet  he  was  barred  from  testi- 
fying, because  a  party.    The  court  said: 

"The  question  whether  the  plaintiff  was  a  competent  witness  is  of  much 
practical  importance  to  the  community,  as  in  consequence  of  the  facilities 
for  travelling,  the  passenger  travel  is  constantly  on  the  increase  and  railroad 
companies  being  carriers  of  passengers  and  baggage  are  liable  by  the  rules 
of  common  law  for  losses.  .  .  .  But  the  law  of  evidence  is  not  of  a  fleeting 
character." 

To  counteract  this  decision  {Snow  v.  Eastern  R.  R.  Co.,  12  Mete.  44),  the 
Legislature  of  Massachusetts  was  compelled  by  public  opinion  to  pass  an 
act  (St.  1851,  c.  147)  allowing  a  passenger  to  put  in  evidence  his  own  schedule 
or  written  descriptive  contents  of  his  trunk.  [See  Harlow  v.  Fikhburg  R.  R., 
8  Gray,  237  (1857).]  Similar  acts  were  passed  in  other  States.  See  Mad. 
River,  etc.,  R.  R.  v.  Fulton,  20  Ohio  St.  319  (1853);  and  Livingston's  Monthly 
Law  Magazine,  January,  1853. 


CHAPTER  XVIII 

THE   RISE   OF  RAILROAD  AND   CORPORATION   LAW 

It  is  a  commonplace  to  remark  that  the  effect  of  rail- 
roads upon  the  history  of  the  United  States  has  been  pro- 
found. As  Judge  John  F.  Dillon  has  well  said:  "Marshall's 
judgments  and  our  lines  of  railways  and  telegraph  have 
done  more  than  any  other  visible  agencies  in  making 
and  keeping  us  one  united  nation."  It  is,  however,  be- 
cause of  the  notably  marked  mfluence  which  railroads  and 
the  doctrines  of  law  growing  out  of  the  problems  pre- 
sented by  them,  have  had  upon  the  development  of  the 
American  Bar  and  upon  the  legal  history  of  the  country, 
that  a  separate  chapter  may  properly  be  devoted  to 
this  distinctive  feature  of  the  middle  of  the  Nineteenth 
Century. 

The  years  1830  to  i860  witnessed  the  creation  and  prac- 
tical estabhshment  of  the  law  of  raUroads. 

The  great  Middlesex  Canal  Corporation,  chartered  in 
1793,  had  been  in  successful  operation  in  Massachusetts 
for  many  years.  In  1825  came  the  completion  of  the  Erie 
Canal  in  New  York  and  the  beginning  of  the  Delaware 
and  Hudson  Canal  in  New  Jersey.  In  the  same  year, 
1825,  however,  Governor  Levi  Lincoln  of  Massachusetts 
in  his  message  approving  a  canal  from  Boston  to  the 
Connecticut  River  suggested  that  he  had  "been  assured 
that  another  mode,  by  railways,  had  been  approved  of  in 
England,"  and,  he  added,  "how  far  they  would  be  affected 
by  our  severe  frosts  cannot  be  conjectured  yet."    He  also 


476  A  HISTORY  OF  THE  AMERICAN  BAR 

stated  that  whether  they  were  better  than  canals  remained 
to  be  determined. 

For  twenty  years  before  the  actual  operation  of  railroads, 
clear-visioned  men  had  prophesied  the  certain  success  of 
this  form  of  the  application  of  steam  power. 

As  early  as  1812,  Oliver  Evans,  who  in  1804  had  actually 
operated  in  Pennsylvania  a  combination  scow  and  wagon 
by  steam,  said:  ^ 

"I  verily  believe  that  the  time  will  come  when  carriages 
propelled  by  steam  will  be  in  general  use,  as  well  for  the 
transportation  of  passengers  as  goods,  travelling  at  the 
rate  of  fifteen  miles  an  hour  or  300  miles  per  day." 

In  1822,  Niles^  Register  had  said:^ 

"  Distance  —  What  is  it? 

"In  noticing  the  progress  of  improvement,  we  have  many 
times  asked  this  question.  New  York  and  Norfolk  are 
now  brought  within  forty-eight  hours'  journey  of  each 
other,  by  means  of  a  steam  tug  that  plies  with  passengers 
and  freight  between  them. 

"We  shall  soon  have  Oliver  Evans'  ideas  of  steam  wagons 
realized,  when  a  trip  to  Pittsburg  will  be  only  a  little 
excursion  —  the  mighty  ridges  of  the  Alleghanies  being 
sunk  by  the  pressure  of  scientific  power.  Over  the  water 
and  over  the  earth  —  when  shall  we  travel  in  the  air  as 
we  will  it?  —  By  steam?  —  we  know  not,  but  dare  not 
say  what  is  impossible  in  respect  to  it." 

In  1828,  Niles^  Register  said:  ^ 

"Prophecy  almost  fulfilled.  Oliver  Evans  40  years  ago 
said  that  the  child  was  bom  who  would  travel  from  Phila- 

1  See  N ties'  Register,  Add.  to  Vol.  Ill,  p.  5;  and  Niks'  Register,  Vol. 
XXXV,  p.  72. 

*  Niles'  Register,  Vol.  XXIII,  p.  130. 
»  Niles'  Register,  Vol.  XXXV,  p.  19. 


RISE  OF  RAILROAD  AND   CORPORATION  LAW    477 

delphia  to  Boston  in  one  day  —  24  hours.  The  journey 
may  now  be  made  in  about  twenty-nine  hours!  The  use 
of  steam  coaches,  with  some  Uttle  further  improvement 
in  steamboats,  may  in  less  than  five  years  fuHil  what  was 
thought  the  mad  prophecy  of  Oliver  Evans;  for  then  the 
journey  was  one  of  serious  moment  and  with  severe  travel- 
ling occupied  five  or  six  days." 

The  first  railroad  operated  in  this  country,  the  Granite 
Railway  Company,  was  chartered  in  Massachusetts  in 
1826  and  constructed  to  transport,  by  horse  power,  granite 
for  the  new  Bunker  Hill  Monument.^ 

In  the  same  year.  New  York  chartered  the  Mohawk  and 
Hudson  Railroad  Company. 

The  next  year,  1827,  Massachusetts  became  a  pioneer 
in  the  railway  agitation  by  appointing  a  Board  of  Com- 
missioners of  Internal  Improvements  to  survey  a  route 
for  a  railway  from  Boston  to  the  Rhode  Island  boundary, 
and  also  to  the  New  York  boundary.  It  made  a  report  to 
the  Legislature,  urging  that  the  roads  when  built  should 
be  operated  by  horse  power;  ^  and  this  was  the  power  for 
which  all  the  early  railroads  were  designed. 

But  in  October,  1826,  George  Stephenson  had  demon- 
strated in  England  the  success  of  his  steam  locomotive, 

1  The  Journal  of  Law  (Phil.  1831),  Vol.  I,  contains  an  article  on  the 
Law  Relaling  lo  Masters  of  Ships  and  Common  Carriers  which  makes  no  men- 
tion of  railroads,  but  notes  the  "increasing  importance  of  carriers  by  canal 
boats." 

2  A  contemporary  view  of  this  project  is  given  by  J.  T.  Buckingham  in 
his  Personal  Memoirs:  "It  was  in  the  summer  of  1827  that  the  railroad 
mania  began  to  manifest  itself.  The  idea  of  a  railroad  from  Boston  to 
Albany  or  even  to  Springfield  was  met  with  ridicule  in  the  Legislature  as  a 
project  too  absurd  to  be  discussed  with  gravity. 

"An  editorial  in  the  Boston  Courier  in  June  says,  'a  project  which  every 
one  knows,  who  knows  the  simplest  rules  in  arithmetic,  to  be  impracticable 
but  at  an  expense  little  less  than  the  market  value  of  the  whole  territory 
of  Massachusetts,  and  which  if  practicable  every  person  of  common  sense 
knows  would  be  as  useless  as  a  railroad  from  Boston  to  the  !Moon.'  " 


478  A  HISTORY  OF  THE  AMERICAN  BAR 

the  "Rocket;"  ^   and  the  introduction  of  steam  power  in 
the  United  States  soon  followed. 

July  4, 1828,  the  Baltimore  and  Ohio  Railroad  was  begun, 
fourteen  miles  being  opened  for  traffic  by  horse  power  in 
1830,  and  sixty-one  miles  by  steam  in  183 1.  EngUsh  loco- 
motives drew  trains  on  the  Delaware  and  Hudson  Canal 
Railroad  in  1829,  and  in  1830,  the  first  American  steam 
locomotive  was  used  on  the  South  Carolina  Raihroad.^ 
Between  1825  and  1830,  thirty-six  miles  of  railroad  had 
been  built  in  South  Carolina,  New  Jersey  and  Maryland. 
In  Massachusetts,  though  a  number  of  railroads  were  in- 
corporated, construction  was  not  begun  for  several  years, 
owing  to  the  discouraging  effect  produced  upon  investors 
of  capital  by  the  decision  in  the  famous  case  of  Charles 
River  Bridge  v.  Warren  Bridge  (7  Pick.  344),  in  1828.  This 
case,  holding  that  the  grant  of  a  toll  bridge  charter  by  the 
Legislature  did  not  preclude  a  later  Legislature  from  char- 
tering a  free  bridge,  located  so  close  to  the  former  bridge 
as  to  deprive  it  of  all  profits,  and  that  a  legislative  charter 
did  not  grant  exclusive  rights  by  implication,  proved  an 
obstacle  in  the  path  of  railroad  promoters  for  almost 
nine  years,  i.  e.  until   the   question  was  fiinally  settled 

1  A  full  descripion  of  this  trial  trip  appeared  in  the  Boston  Daily  Adver- 
tiser, November  23,  1826,  and  on  November  25,  that  newspaper  stated  that: 
"These  experiments  constitute  a  new  era  in  the  history  of  railroads.  They 
prove  conclusively  that  they  are  adapted  in  the  most  perfect  manner  for 
rapid  travelling,  whatever  power  may  be  used." 

2  An  article  on  Internal  Improvements  in  American  Quarterly  Review, 
Vol.  VIII,  in  December,  1830,  said: 

"So  far  then  as  animal  power  is  concerned,  railroads  are  not  more  than 
half  as  advantageous  for  transportation  as  canals.  The  search  at  the  present 
moment  is  therefore  for  such  friction-saving  apparatus  as  will  place  railroads 
on  a  level  with  canals.  .  .  .  Upon  the  success  of  some  such  fricrion-saving 
apparatus  must  depend  the  great  question  whether  railroads  can  compete 
with  canals.  .  .  .  Railroads,  however,  are  about  to  derive  new  advantages 
from  the  application  of  steam  to  locomotion." 


RISE  OF   R.\ILROAD   AND   CORPORATION  LAW    479 

on   appeal  by  the  Supreme  Court  of  the  United  States 
in  1837.' 

The  advent  of  canals  and  railroads  sounded  the  death 
knell  of  the  turnpike  companies.  In  fact,  the  increasing 
wealth  of  the  towns  and  the  consequent  building  of  town 
highways  had  already  affected  the  prosperity  of  turnpikes; 
and  in  1827,  Massachusetts  had  passed  an  act  allowing 
turnpikes  to  be  laid  out  as  public  highways,  by  the  town 
authorities.^    In  turn,  however,  the  ruin  of  the  canal  com- 

1  A  brief  r6sum(5  of  the  progress  of  railroad  building  during  these  years 
is  of  interest. 

Twelve  miles  from  Albany  to  Schenectady,  on  the  Mohawk  and  Hudson 
R.  R.,  were  opened  in  1831.  The  Camden  and  Amboy  R.  R.  (chartered  in 
New  Jersey  in  1830)  was  completed  in  1834  as  a  through  route  from  New 
York  to  Philadelphia.  In  Massachusetts,  the  State  in  which  the  greatest 
railroad  development  occurred,  the  Boston  and  Worcester  R.  R.  (chartered 
in  1 831)  opened  nine  miles  for  travel  in  the  summer  of  1833;  the  Boston  and 
Providence  R.  R.  (chartered  in  1831)  was  opened  in  June,  1834;  the  Boston 
and  Lowell  R.  R.  (chartered  in  1830)  was  opened  in  1835. 

From  1830  to  1848,  there  was  a  total  of  5,205  miles  of  railroad  in  the 
whole  United  States;  but  the  year  1849  marked  the  beginning  of  the  great 
railroad  extensions,  and  by  i860,  30,135  miles  had  been  built. 

By  1840,  however,  it  was  possible  to  go  from  New  York  by  various  con- 
necting railroads  as  far  South  as  Roanoke,  No.  Car.,  and  as  earl}'  as  1836,  as 
far  West  as  Utica,  N.  Y.  In  1842,  the  first  long  single  through  route  was 
completed,  that  from  Boston  to  Albany.  In  1850,  the  Erie  R.  R.  was 
opened  through  to  Lake  Erie;  and  in  1853  came  the  first  important  rail- 
road consolidation,  when  eleven  lines  between  Albany  and  Buffalo  became 
the  N.  Y,  Central  R.  R.  By  1854,  the  Chicago  and  Rock  Island  R.  R. 
reached  the  Mississippi  River,  and  by  1859,  the  Hannibal  and  St.  Joseph 
had  penetrated  to  the  Missouri  River.  In  1850,  Chicago  had  only  one 
short  railroad.  In  1852,  it  received  railroad  connection  with  the  East  by 
the  completion  of  the  Michigan  Central  R.  R.  and  the  Michigan  Southern 
R.  R.;  in  1851,  the  Pennsylvania  R.  R.  extended  its  system  to  Chicago; 
and  by  i860,  that  city  had  become  a  railroad  centre. 

*  St.  1827,  c.  77;  see  Andover  and  Medford  Turnp^ike  Corp.  v.  County 
Com.,  18  Pick.  486  (1836). 

Another  contributing  factor  to  the  lapse  of  turnpikes  was  the  decision  of 
Chief  Justice  Shaw  in  1836,  that  turnpike  corporations  were  liable  for  inju- 
ries caused  even  by  latent  defects  in  their  roads,  and  irrespective  of  negli- 
gence.   See  Yale  v.  Hampden  and  Berkshire  Turnpike  Corp.,  iS  Pick.  357. 


4So  A  HISTORY  OF  THE  AMERICAN  BAR 

panics  was  brought  about  by  the  growth  of  the  railroads, 
and  most  of  them  either  failed  or  were  bought  up  by  the 
railroads  or  dragged  out  a  feeble  existence  with  no  profits.^ 
To  Chief  Justice  Shaw  of  Massachusetts  chiefly  belongs 
the  glory  of  laying  down  the  broad  principles  on  which  the 
law  of  railroads  was  framed  by  judicial  decision,  although 
the  courts  of  New  York  also  took  a  large  part  in  its  making. 
As  Judge  Thomas  strikingly  said :  ^ 

"The  first  puff  of  the  engine  on  the  iron  road  announced 
a  revolution  in  the  law  of  bailments  and  of  common  carriers. 
How  much  Shaw's  wisdom  and  foresight  and  that  clear 
comprehension  of  the  principles  of  the  Common  Law,  which 
enabled  him  to  separate  the  rule  from  its  old  embodiments 
and  to  mould  it  to  new  exigencies,  contributed  to  build 
up  this  law,  to  give  it  system  and  harmony,  and  a  subtrac- 
tion of  soUd  sense,  is  well  known  to  the  profession." 

No  more  superb  statement  of  the  manner  in  which  the 
principles  of  the  Common  Law  are  to  be  adapted  to  new 
conditions  of  modern  hfe  has  ever  been  made  than  by 
Shaw,  in  1854,  in  a  case  involving  the  liability  of  railroads 
as  warehousemen;  and  a  quotation  from  his  opinion  is 
worthy  of  reproduction  at  length :  ^ 

"  The  liabihty  of  carriers  of  goods  by  railroads,  the  grounds 
and  precise  extent  and  limits  of  their  responsibility,  are 
coming  to  be  subjects  of  great  interest  and  importance 
to  the  community.  It  is  a  new  mode  of  transportation, 
in  some  respects  like  the  transportation  of  ships,  lighters 
and  canal  boats  on  water,  and  in  others  like  that  by  wagons 
on  land;  but  in  some  respects  it  differs  from  both.  Though 
the  practice  is  new,  the  law,  by  which  the  rights  and  obU- 

^  See  Forward  v.  Hampshire  and  Hampden  Canal  Co.,  22  Pick.  465  (1839); 
Chase  v.  Sutton  Mfg.  Co.,  4  Cush.  152  (1839),  for  interesting  comments  on 
the  downfall  of  the  canals. 

2  Meynoir  oj  Chief  Justice  Shaw,  by  Benjamin  F.  Thomas,  Mass.  Hist. 
Sac.  Proc,  Vol.  X  (1867-1869). 

'  Norway  Plains  Co.  v.  B.  6*  M.  R.  R.,  i  Gray  263  (1854). 


RISE  OF  RAILRO.VD  AND   CORPOR.\TION  LAW    481 

gations  of  owners,  consignees  and  of  the  carriers  them- 
selves, are  to  be  governed,  is  old  and  well  established. 
It  is  one  of  the  great  merits  and  advantages  of  the  Common 
Law,  that,  instead  of  a  series  of  detailed  practical  rules, 
established  by  positive  provisions,  and  adapted  to  the 
precise  circumstances  of  particular  cases,  which  would 
become  obsolete  and  fail,  when  the  practice  and  course 
of  business,  to  which  they  apply,  should  cease  or  change, 
the  Common  Law  consists  of  a  few  broad  and  comprehensive 
principles,  founded  on  reason,  natural  justice  and  en- 
lightened pubUc  policy,  modified  and  adapted  to  the  cir- 
cumstances of  all  the  particular  cases  which  fall  within 
it.  These  general  principles  of  equity  and  policy  are  ren- 
dered precise,  specific  and  adapted  to  practical  use,  by 
usage,  which  is  the  proof  of  their  general  fitness  and  com- 
mon convenience,  but  still  more  by  judicial  exposition. 
.  ,  .  The  effect  of  this  expansive  character  of  the  Common 
Law  is,  that  when  new  practices  spring  up,  new  combi- 
nations of  facts  arise,  and  cases  are  presented  for  wliich 
there  is  no  precedent  in  judicial  decision,  they  must  be  gov- 
erned by  the  general  principle,  applicable  to  cases  most 
nearly  analogous,  but  modified  and  adapted  to  new  circum- 
stances, by  considerations  of  fitness  and  propriety,  of  reason 
and  justice  which  grow  out  of  those  circumstances." 

The  original  conception  of  a  railroad  was  that  of  an  im- 
movable structure  graded  for  the  use  of  vehicles  moving 
on  rails  provided  for  the  purpose,  on  which  everyone  who 
could  procure  the  proper  carriage  and  apparatus  would 
have  the  right  to  travel,  on  pa>ing  a  proper  toll  for  the  use 
of  the  road  and  conforming  to  any  reasonable  regulations. 

It  was  regarded  as  a  better  kind  of  turnpike.  Companies 
chartered  to  build  were  primarily  construction  companies 
building  a  road  for  the  use  of  others;  and  on  these  prin- 
ciples the  early  cases  in  the  courts  were  decided.^    With 

»  See  Lake  Superior  and  Miss.  R.  R.  v.  U.  S.,  93  U.  S.  401,  pp.  446,  450. 

"It  is  undoubtedly  familiar  to  most  of  those  whose  recollection  goes  back 

to  that  period  that  railroads  were  generally  expected  to  be  public  liigh- 


482  A  HISTORY  OF  THE  AIMERICAN  BAR 

this  in  view,  the  early  railroad  charters  were  framed  prac- 
tically on  the  form  of  the  old  turnpike  corporation  charters, 
and  the  Revised  Statutes  of  Massachusetts  in  1836  in- 
cluded them  all  together  in  a  chapter  headed  "Of  Turn- 
pikes, Railroads  and  Canals."  It  was  not  until  later  that 
this  theory  was  changed  by  legislation. 

Chief  Justice  Shaw  thus  stated  the  early  theory:  ^ 

"The  railroad  contemplated  by  our  earliest  legislation 
upon  the  subject  was  but  an  iron  turnpike,  the  use  of  which 
was  to  be  paid  for  by  tolls  collected  of  persons  travelling 
upon  it.  It  apparently  was  not  anticipated  that  the  rail- 
road companies  were  to  become  themselves  the  carriers 
of  goods  and  passengers. 

"But  this  idea  or  policy  as  to  the  mode  in  which  railroads 
were  to  be  used  was  abandoned  before  any  of  our  railroads 
were  fully  constructed  and  put  into  operation.  In  the 
act  incorporating  the  Boston  and  Worcester  Railroad 
Company  (St.  183 1,  c.  72),  powers  were  given  to  the  cor- 
poration for  the  transportation  of  persons  and  goods,  and 
for  the  purchase  of  engines  and  cars  for  the  purpose.  These 
provisions  were  inserted,  it  is  understood,  under  the  ad- 
vice of  a  distinguished  member  of  our  profession  deeply 

ways,  on  which  every  man  who  could  procure  the  proper  carriages  and 
apparatus  would  have  the  right  to  travel.  This  was  the  understanding  in 
England  where  they  originated.  .  .  .  Most  of  the  early  railroad  charters 
in  this  country  were  framed  upon  the  same  idea.  —  Thus  the  charter  of  the 
Mohawk  and  Hudson  R.  R.  Co.  (New  York,  1826);  and  in  subsequent 
charters  granted  in  1828  and  succeeding  years,  the  intent  is  still  more  plainly 
expressed.  ...  So,  in  the  early  charters  granted  by  Massachusetts  and 
Maine,  as  late  as  1837,  New  Hampshire  as  late  as  1844.  See  also  the  charter 
of  the  Camden  and  Amboy  R.  R.  Co.  in  New  Jersey  in  1830,  and  that  of  the 
New  Jersey  R.  R.  in  1832,  the  Philadelphia  and  Trenton  R.  R.  Co.  in  Penn- 
sylvania in  1832.  ...  In  Massachusetts,  the  right  of  the  public  to  use 
them  was  expressly  abrogated  by  the  Act  of  1845.  .  .  .  The  general  course 
of  legislation  demonstrates  the  fact  that  in  the  early  history  of  railroads  it 
was  quite  generally  supposed  that  they  could  be  public  highways  in  fact  as 
well  as  in  name.  The  railroads  constructed  under  the  early  charters  are, 
theoretically  at  least,  public  highways  to-day." 
1  Com.  V.  Fitchburg  R.  R.,  12  Gray,  p.  187  (1858). 


RISE  OF  IL\ILROAD   AND   CORPORATION  LAW    483 

interested  in  works  of  internal  improvement.  All  the 
subsequent  legislation  of  the  Commonwealth  has  assumed 
and  proceeded  upon  the  ground  that  railroad  companies 
were  to  be  the  carriers  of  passengers  and  merchandise 
upon  their  respective  roads." 

And  in  another  case,  he  said :  ^ 

"It  was  ascertained  very  early  after  railroads  were 
brought  into  use,  that  it  would  not  only  be  attended  with 
great  inconvenience,  but  also  with  imminent  hazard  and 
danger  to  the  public,  to  allow  different  and  independent 
railroad  companies  to  run  their  cars  on  the  same  track; 
and  that  it  was  indispensable  to  the  pubUc  safety  that 
every  car  carried  upon  a  railroad  should  be  under  the 
control  and  direction  of  the  particular  company  by  which 
it  was  owned.  Accordingly  it  was  provided,  that  no  loco- 
motive engine  or  other  motive  power  should  be  allowed 
to  run  upon  any  railroad  constructed  under  authority 
of  this  commonwealth,  except  such  as  should  belong  to 
and  be  controlled  by  the  corporation  owning  and  managing 
such  road,  unless  by  their  consent;  and  also  that  every 
railroad  corporation  owning  a  railroad  in  actual  use  should 
be  required,  at  reasonable  times  and  for  a  reasonable  com- 
pensation, to  draw  over  their  road  the  passengers,  mer- 
chandise and  cars  of  any  other  railroad  corporation  which 
had  been  duly  authorized  to  enter  upon  or  unite  their 
road  with  it.  St.  1845,  c.  191,  ss.  i,  2.  After  the  enactment 
of  this  statute,  the  only  right  of  the  proprietors  of  other 
railroads  to  enter  or  run  their  cars  upon  it  was  under  the 
special  provisions  contained  in  it." 

As  an  illustration  of  the  recent  date  of  railroad  law,  it 
may  be  noted  that  the  first  railroad  case  decided  in  the 
courts  was  in  New  York  in  1835  —  Camden  and  Amhoy 
R.  R.  and  Transportation  Co.  v.  Burke  (13  Wend.  611)  — 
in  which  David  Graham,  Jr.,  was  counsel  against  William 
Anthon.  The  case  involved  the  question  whether  the 
company  "as  proprietor  of  a  line  of  steamboats  and  of  a 
*  Fitchburg  R.  R.  Co.  v.  Gage,  12  Gray,  p.  3q6  (1859). 


484  A  HISTORY  OF  THE  AMERICAN  BAR 

railroad  and  carriages  between  New  York  and  Philadel- 
phia" was  liable  as  a  common  carrier  for  loss  of  "ward- 
robe, music  and  musical  instruments  of  the  plaintiff's 
minor  son,  Master  Burke,  a  stage  player." 

The  earliest  cases  in  Connecticut  and  Pennsylvania  were 
in  1838,  in  Maine  in  1842,  in  Vermont  in  1847,  and  in  New 
Hampshire  in  1850. 

The  railroads  at  first  attempted  to  escape  from  the  rigid 
Common  Law  carrier's  Habihty  by  issuing  general  notices 
to  restrict  their  obligations  for  loss;  and  the  early  cases 
were  much  concerned  with  litigation  on  this  subject.  It 
was  decided  in  New  York  as  early  as  1838,  that  such  re- 
striction was  invahd  —  Hollister  v.  Nowlen  (19  Wend.  234), 
and  the  United  States  Supreme  Court  rendered  a  like  de- 
cision in  1848,  in  New  Jersey  Steam  Navigation  Co.  v.  Mer- 
chants^ Bank  (6  How.  344),  in  a  case  involving  a  steamboat 
and  an  expressman.^  Later,  special  notice,  brought 
home  to  the  shipper  or  passenger,  was  held  to  exempt 
the  raUroad. 

Another  much  mooted  question  in  the  earliest  railroad 
and  steamboat  cases  was  whether  these  new  kinds  of  com- 
mon carriers  were  obhged  to  make  deHvery  of  freight  at 
the  actual  residence  or  place  of  business  of  the  consignee. 
It  was  to  the  action  of  the  courts  in  recognizing  usage  and 
convenience  as  decisive  in  restricting  the  railroad's  obliga- 
tions m  this  respect  that  the  business  of  expressman  owes 
its  origin,  about  1838.^ 

Incidentally  it  is  to  be  noted  that  the  express  business 
constituted  another  new  form  of  common  carrier;  and  as 
the  Law  Reporter  said,  in  1849,  i^^  ^  review  of  Angell  on 

^  See  Law  of  Carriers^  Notices  in  Law  Reporter,  Vol.  XV  (1852). 

2  See  interesting  article  on  Power  of  Usage  and  Custom  to  alter  the  Com- 
mon Law  by  John  F.  Dillon  —  Southern  Law  Review,  Vol.  VII  (1881-1882). 
See  also  Law  Reporter,  Vol.  XIV,  p.  134  (185 1). 


RISE  OF  RAILROAD  AND  CORPORATION  LAW    485 

Carriers,  "the  rights  and  liberties  of  expressmen  have  be- 
come most  important  subjects.  At  one  time  they  deranged 
our  whole  postal  system;  and  they  have  yet  to  be 
accurately  defined." 

No  case  arose  in  the  United  States  Supreme  Court  in 
which  a  railroad  was  a  party  until  1845  —  Maryland  v. 
Balthnore  and  Ohio  R.  R.  (3  How.  534),  a  case  involving  a 
stock  subscription;  not  until  1852  was  the  first  railroad 
accident  case  argued  in  that  Court  —  Philadelphia  and 
Reading  R.  R.  v.  Derby  (14  How.  468). 

As  the  number  of  railroad  cases  decided  in  Massachu- 
setts practically  equalled  that  of  all  the  other  States  com- 
bined; and  as  the  principles  laid  down  by  Chief  Justice 
Shaw  practically  established  the  railroad  law  for  the 
country,  the  gradual  growth  of  that  law  from  year  to  year 
may  be  substantially  traced  in  the  court  decisions  of  that 
State. 

The  first  mention  of  the  term  "railroad"  in  the  Massa- 
chusetts reports  was  In  re  Wellington   (16  Pick.  87)  in 

1834  —  "railroads,  a  recent  form  of  pubHc  works."      In 

1835  came  the  first  case  in  which  a  raihroad  was  a  party 
—  Boston  Water  Power  Co.  v.  Boston  and  Worcester  R.  R. 
Corp.  (16  Pick.  512;  23  Pick.  360).  In  this  case,  the  right 
of  a  railroad  to  exercise  the  power  of  eminent  domain  was 
considered. 

The  first  tort  case  against  a  railroad  was  not  decided 
until  1839  —  Lowell  v.  Boston  and  LoweU  R.  R.  (23  Pick. 
24).  The  first  ruling  that  a  railroad  was  a  public  work 
and  that  its  property  was  intended  for  public  use  was  in 
Worcester  v.  Western  R.  R.  (4  Mete.  564)  in  1842. 

In  this  same  year,  1842,  came  the  epoch-making  de- 
cision of  Chief  Justice  Shaw  exempting  employers  from 
liability  to  their  employees  for  negligence  of  fellow  em- 
ployees— Farwell  v.  Boston  and  Worcester  R.R.  {4  Mete. 49.) 


4S6  A  HISTORY  OF  THE  AMERICAN  BAR 

The  mo5t  noteworthy  fact  relative  to  this  case  is  the 
extent  to  which  pubhc  policy  and  convenience,  formed  the 
grounds  of  the  decision.    As  Shaw  said: 

''This  is  an  action  of  new  impression  in  our  courts  and 
involves  a  principle  of  great  importance.  ...  It  is  an 
argument  against  such  an  action,  though  certainly  not  a 
decisive  one  that  no  such  action  has  before  been  maintained. 
...  If  we  look  from  considerations  of  justice  to  those 
of  policy  they  will  strongly  lead  to  the  same  conclusions. 
In  considering  the  rights  and  obligations  arising  out  of 
particular  relations  it  is  competent  for  courts  of  justice 
to  regard  considerations  of  policy  and  public  convenience 
and  to  draw  from  them  such  rules  as  will  in  their  practi- 
cal appUcation  best  promote  the  safety  and  security  of  all 
parties  concerned." 

It  is  to  be  recalled  that  at  this  date  the  oldest  railroads 
had  been  constructed  hardly  ten  years,  and  they  were  by 
no  means  an  assured  financial  success.^  Undoubtedly,  the 
fact  that  a  contrary  decision  would  have  imposed  a  great 
burden  on  these  strugghng  institutions  had  a  great  effect 
in  influencing  the  decision  reached  in  this  case. 

The  rule  of  law  laid  down  m  this  case  having  been 
founded  on  public  poHcy,  it  is  only  natural  that,  at  the 
present  time,  when  pubUc  policy  tends  quite  in  the  opposite 
direction,  the  Legislatures  should  be  reversing  very  gener- 
ally, by  statutory  action,  the  worn-out  doctrine.    As  long 

1  So  great  were  the  financial  obstacles  in  the  way  of  railroad  promoters, 
that  in  most  States  of  the  Union,  the  early  raihroads  were  assisted  by  legis-' 
lative  and  municipal  grants.  It  was  the  lavish  expenditure  of  State  money 
and  issue  of  State  bonds  in  behalf  of  railroads,  which  hastened  the  great  com- 
mercial panic  of  1837,  and  the  subsequent  repudiation  of  the  State  debts  by 
various  States  —  Maryland,  Pennsylvania,  Illinois. 

In  Massachusetts,  the  Western  R.  R.  which  was  chartered  in  1833  to 
connect  Boston  with  the  West  through  Albany,  did  not  succeed  in  raising 
its  capital  of  $2,000,000  until  1835,  and  was  obhged  to  obtain  assistance  from 
the  State  of  Massachusetts  in  1838  through  a  State  subscription  to  stock. 


RISE  OF  R.-ULRO.\D  AND  CORPORATION  LAW    4S7 

ago  as  1883,  a  shrewd  law-writer  pointed  out  the  basis 
of  the  doctrine,  and  thereby  foreshadowed  its  probable 
future  overturn: 

"He  must  be  a  bold  man  who  would  undertake  to  tell 
where  the  doctrine  of  common  employment  ends  and  that 
of  the  master's  duty  to  be  present  begins  in  any  State  in 
the  Union.  Much  of  the  trouble  has  arisen  from  the  fact 
that  judges  have  often  failed  to  perceive  that  the  rule  first 
laid  down  in  Farwell's  case  was  estabhshed  by  a  great  and 
wise  legislator  as  a  species  of  protective  tariff  for  the  en- 
couragement of  infant  railway  industries.  It  was  a  harsh 
but  a  plain  and  simple  rule.  Pressed  by  considerations 
of  humanity  and  public  poHcy  the  courts  began  step  by  step 
to  relax  the  rule  and  chaos  reigns."  ^ 

Of  the  financial  difficulties  under  which  railroad  pro- 
moters worked,  Chief  Justice  Shaw  said  later: 

"Of  course,  neither  the  government  nor  the  undertakers 
had  any  experience,  and  could  not  form  any  accurate  or 
even  approximate  estimates  of  the  cost  of  the  work,  or  the 
profits  to  be  derived  from  it.  .  .  .  With  this  want  of  ex- 
perience, and  with  an  earnest  desire  on  the  part  of  the 
public  to  make  an  experiment  of  this  new  and  extraordinary 
public  improvement  it  would  be  natural  for  the  govern- 
ment to  offer  such  terms,  as  would  be  likely  to  encourage 
capitalists  to  invest  their  money  in  public  improvements; 
and  after  the  experience  of  capitalists,  in  respect  of  the 
turnpikes  and  canals  of  the  Commonwealth,  which  had 
been  authorized  by  the  public,  but  built  by  the  application 
of  private  capital,  but  which  as  investments  had  proved 
in  most  cases  to  be  ruinous,  it  was  probably  no  easy  matter 

»  See  Future  of  our  Profession  by  John  M.  Shirley,  Amer.  Law  Review, 
Vol.  XVII  (1S83). 

In  Stevens  v.  Little  Miami  R.  R.  Co.  in  the  Hamilton  Court  of  Common 
Pleas  in  Ohio  in  1S50,  the  court  states  that  "it  has  no  respect  for  Priest- 
ley V.  Fowler  nor  the  Famxll  Case.  .  .  .  Sound  public  policy  not  in 
favor." 


488  A  HISTORY  OF  THE  AIVIERICAN  BAR 

to  awaken  anew  the  confidence  of  moneyed  men  in  these 
enterprises."  ^ 

In  1844,  it  was  decided  that,  as  an  incident  of  its  power 
as  a  common  carrier,  a  railroad  had  power  to  make  regula- 
tions as  to  the  use  of  its  road  and  depots  —  Com.  v.  Power 
(7  Mete.  596),  Shaw  sa}ing: 

"They  are  in  this  respect  on  the  footing  of  owners  of 
steamboats.  Both  are  modern  modes  of  conveyance,  but 
the  rules  of  the  common  law  are  apphcable  to  them  as  they 
take  the  place  of  other  modes  of  carrying  passengers." 

In  1845,  the  liabiUty  of  a  railroad  for  freight  stored  in 
its  depots  and  warehouses  was  decided  in  Thomas  v.  Boston 
and  Providence  R.  R.  (10  Mete.  472),  in  which  Shaw  said: 

"This  is  an  important  question  to  our  community  from 
the  magnitude  and  variety  of  the  interests  concerned  in 
it.  .  .  .  The  proprietors  of  these  novel  and  important 
modes  of  travel  and  transportation  which  have  received 
so  much  public  favor  have  become  the  carriers  of  great 
amounts  of  merchandise.  They  adverrise  for  freight  .  .  . 
and  as  a  legal  consequence  of  such  acts  they  have  become 
common  carriers." 

In  1847  came  the  first  case  of  damage  from  engine 
sparks,  arising  under  the  statute  of  1840  (c.  85)  imposing 
a  liabihty  for  such  damage  —  Hart  v.  Western  R.  R.  (13 
Mete.  99).  Cases  of  this  nature  and  also  cases  of  injuries 
caused  to  cattle  straying  on  the  tracks,  and  to  trespassers 
walking  on  the  tracks  constituted  the  most  frequent 
causes  of  Hrigation  in  these  eariy  days  of  railroad  law. 

In  1848,  the  first  case  involving  HabiHty  of  a  railroad  for 
death  of  a  person  not  a  passenger  arose  in  Carey  v.  Berk- 
shire R.  R.  (i  Cush.  475).  The  decision  in  this  case  hold- 
ing the  railroad  not  Hable  for  death  was  the  first  on  this 

1  Boston  and  Lowell  R.  R.  v.  Salem  and  Lowell  R.  R.,  2  Gray  i  (1854). 


RISE  OF  RAILROAD   AND   CORPORATION  LAW    4S9 

subject  in  the  country,  and  brought  about  a  series  of  acts 
in  the  various  States  changing  the  Common  Law  rule.  The 
Legislature  of  Massachusetts  had  previously  acted  on  the 
subject  in  1840  (c.  80)  by  imposing  a  hability  to  indictment 
upon  a  railroad  causing  death  of  a  passenger. 

In  1849,  it  was  decided  that  a  railroad  was  liable  for  loss 
of  personal  baggage  —  Jordan  v.  Fall  River  R.  R.  (5  Cush. 
72),  the  court  saying: 

"It  is  now  well  settled,  and  it  is  a  matter  of  great  and 
general  convenience  and  accommodation  in  this  age  of 
general  and  perpetual  travelUng,  that  passenger  carriers 
are  responsible  for  the  baggage  of  a  passenger  and  that  the 
reward  for  conveying  the  baggage  is  included  in  the  pas- 
senger's fare.  .  .  .  Some  persons,  and  in  tliis  particular, 
the  wisest,  perhaps  take  little  or  nothing  with  them  in 
travelHng,  while  others  take  many  things  and  large  quanti- 
ties. .  .  .  Money  bona  fide  taken  for  travelling  expenses 
and  personal  use  may  properly  be  regarded  as  forming  a  part 
of  the  traveller's  baggage.  The  time  has  been  in  our 
country  when  the  character  and  credit  of  the  local  currency 
were  such  that  it  was  expedient  and  needful  for  persons 
travelling  through  different  States  to  pro\'ide  themselves 
with  an  amount  which  could  not  conveniently  be  carried 
about  the  person  to  defray  travelUng  expenses." 

In  the  same  year,  1849,  the  first  accident  case  brought 
by  a  passenger  was  decided  —  McElroy  v.  Nashua  and 
Lowell  R.  R.  (4  Cush.  400). 

In  1854,  the  question  of  the  liabihty  of  a  railroad  for  loss 
or  damage  occurring  beyond  its  own  line  on  freight  shipped 
to  a  point  on  another  railroad  was  decided  in  Nutting  v. 
Conn.  River  R.  R.  (i  Gray  502). 

In  1855,  the  first  railway  mortgage  case  —  Shaw  v.  Nor- 
folk County  R.  R.  (5  Gray  162)  —  was  argued  by  the  two 
leaders  of  the  Massachusetts  Bar,  Sidney  Bartlett  against 
Rufus  Choate. 


490  A  HISTORY  OF  THE  AMERICAN  BAR 

In  1858,  the  much  mooted  question  of  the  liability  of 
landowners  to  fence  their  lands  to  prevent  cattle  from 
straying  on  the  railroad  tracks  was  decided  in  Massachu- 
setts in  Browne  v.  Providence,  etc.  R.  R.  (12  Gray  59),  in 
which  the  court  said: 

"In  view  of  the  recent  origin  of  railroads  and  of  the 
dangers  that  attend  their  operations  by  means  of  steam 
which  was  never  used  on  highways  as  a  motive  power, 
we  cannot  think  that  the  law  (statute)  by  which  these 
defendants  were  bound  to  make  all  needful  fences  and 
cattle  guards  by  the  sides  of  their  road  was  intended  to 
hold  them  only  to  the  Common  Law  duty  and  liability  of 
adjoining  lands,  under  the  old  order  of  things;  but  we 
are  of  opinion  that  it  was  intended  to  be  applied  to  the 
'new  circumstances  and  conditions  of  things  arising  out 
of  the  general  introduction  and  use  of  railroads  in  the 
country.'" 

The  question  had  arisen  in  New  York  as  early  as  1848.^ 
Such  was  the  general  course  of  development  of  railroad 
law  in  Massachusetts;    and  with  sHght  variations  it  was 
typical  of  the  progress  of  the  law  in  other  States. 

The  first  law  book  which  treated  of  railroads  was  pub- 
lished in  1849  —  Angell  on  Carriers  —  which  included 
railroad  law  as  a  part  of  the  general  law  of  carriers.^  In 
its  preface  it  is  said: 

1  See  Tonawanda  R.  R.  v.  Munga,  5  Denio  225;  4  Comstock  255;  Clark 
V.  Syracuse  and  Ulica  R.  R.,  11  Barbour  112;  Jackson  v.  Rutland  and  Bur- 
lington R.  R.,  25  Vermont,  150  (1853). 

2  "In  the  review  of  this  book  in  the  Law  Reporter,  in  1849,  Vol.  XII,  it  is 
said: 

"The  law  of  carriers  especially  in  this  country  has  acquired  a  peculiar 
importance.  The  extent  of  the  American  confederacy,  that  perfect  system 
of  free  trade  which  is  kept  up  within  its  limits  and  the  increased  facilities 
of  travelling  and  transportation  contribute  to  this  result.  Under  these 
circumstances,  it  is  remarkable  that  we  have  not  had  hitherto  any  work 
devoted  exclusively  to  this  subject  except  two  English  treatises,  one  by  Jer- 


RISE  OF  TLULROAD  AND   CORPORATION  LAW    491 

"Since  the  commencement  of  the  present  century,  and 
more  especially  since  American  inventive  genius  has 
rendered  the  accelerative  and  reliable  agency  of  steam 
subservient  to  the  transportation  of  commodities  and  of 
travellers,  the  legal  duties,  liabilities  and  rights  of  public 
carriers  of  both  things  and  persons  have  become  subjects 
of  vastly  more  interest  and  greater  moment  than  before 
this  era  was  realized  or  even  generally  anticipated.  .  .  . 
So  instrumental  have  railroads  proved,  in  combination 
with  the  employment  of  the  agency  just  mentioned,  in 
cementing  in  tlus  connection  and  dependence  sections  of 
the  country  far  removed  from  each  other,  that  the  interest 
of  the  mercantile  and  travelling  public,  and  more  especially 
of  the  legal  profession,  in  the  direction  of  the  subject  of 
the  following  work  has  attained  its  acme." 

Six  years  later,  in  1855,  was  pubhslied  Judge  Milo  L. 
Bennett's  edition  of  an  English  work  Shelford's  Law  of 
Railways  —  "the  best  treatise  we  have  on  the  subject," 
said  the  American  Law  Register  (Vol.  III). 

In  1857  came  the  first  American  text-book  devoted  en- 
tirely to  the  subject  —  Edward  L.  Pierce's  Review  of 
American  Railroad  Law  —  "the  first  book  of  the  kind  upon 
a  subject  of  increasing  interest"  said  the  Law  Reporter 
(Vol.  XX). 

In  1858  appeared  Judge  Isaac  F.  Redfield's  book  on 
Railways,  in  the  preface  to  which  the  author  speaks  of  this 

emy  published  in  1815,  one  by  Jones  (George  Frederic),  published  in  1827. 
The  only  other  sources  to  which  we  can  recur  for  an  exposition  of  this  branch 
of  the  law  are  the  leading  case  of  Coggs  v.  Bernard  (2  Lord  Raym.)  909,  by 
which  Lord  Chief  Justice  Holt  incorporated  the  whole  of  the  civil  law  on 
the  subject  of  bailments  into  the  common  law  of  England,  and  the  two  trea- 
tises, English  and  American,  on  the  Law  of  Bailments,  the  first  by  Sir  William 
Jones  and  the  latter  by  the  late  Mr.  Justice  Story. 

"...  In  Lord  Holt's  decision,  however,  and  in  each  of  the  treatises  we 
have  named,  the  law  of  carriers  is  considered  in  its  place  only  as  a  part  of  the 
comprehensive  law  of  bailments.  Besides,  so  great  have  been  the  changes  in 
the  mode  of  travelling  \%-ithin  the  past  few  years  that  even  the  recent  work,  of 
Mr.  Justice  Story  may  require  some  modification." 


492  A  HISTORY  OF  THE  AMERICAN  BAR 

"law  appropriate  to  a  department  of  enterprise  which 
combines  the  grandest  material  energies  of  the  age  and 
unfolds  views  of  national  greatness  which  patriotism  de- 
lights to  contemplate."  ^ 

Probably  no  economic  institution  was  more  affected  in 
its  growth,  and  no  branch  of  law  received  greater  impetus, 
between  the  years  1830  and  i860,  through  judicial  decisions, 
than  that  of  corporations;  and  the  great  increase  in  number 
and  influence  of  corporations  was  largely  affected  by  the 
doctrines  laid  down  by  the  courts. 

In  the  earlier  years,  the  corporations  were  much  re- 
stricted in  their  growth  by  statutory  provisions  imposing 
on  stockholders  the  hability  of  partners.  Notwithstand- 
ing these  restrictions,  as  early  as  1826,  Kent  in  his  Com- 
mentaries'^ referred  to  "the  propensity  in  modern  times  to 
multiply  civil  corporations,  especially  in  the  United  States, 
where  they  have  increased  in  a  rapid  manner  and  to  a 
most  astonishing  extent.     The  various  acts  of  incorpora- 

*  In  a  review  of  this  book,  the  Law  Reporter  (Vol.  XX)  said: 

"To  many  of  the  profession  the  time  has  been  since  they  began  to  prac- 
tise that  a  book  with  such  a  title  would  have  been  a  matter  of  new  and  curious 
speculation.  ...  As  a  single  illustration  in  the  first  three  volumes  of  the 
U.  S.  Digest  bringing  down  the  decided  cases  to  near  1847  there  were  only 
two  cases  to  be  found  under  the  head  of  Railroad. 

"  The  next  two  volumes  contain  only  about  50  of  these  cases.  So  rapidly 
had  they  multiplied,  however,  that  the  volume  for  the  single  year  1855,  con- 
taining the  cases  in  48  volumes  of  reports,  embraces  as  many  under  the  head 
of  Railroad  within  some  two  or  three  as  are  found  in  the  digests  of  the  whole 
650  volumes  just  mentioned. 

"  No  better  or  more  striking  illustration  of  the  flexibility  and  expansion  of 
the  common  law  to  new  circumstances  can  be  offered  than  the  readiness  and 
ease  with  which  it  supplies  the  rules  and  elements  of  jurisprudence  by  which 
the  multifarious  interests  and  relations  upon  the  subject  of  railways  are 
regulated.  And  what,  moreover,  ought  to  increase  our  confidence  in  and 
respect  for  the  common  law  is  the  general  uniformity  which  prevails  in  the 
decision  of  these  questions  as  they  have  arisen  from  time  to  time  in  the 
courts  of  some  thirty  different  and  independent  States." 

2  KcnCs  Commentaries,  Vol.  11,  pp.  219-220  (ist  ed.,  1827). 


RISE  OF  RAILROAD  AND   CORPORATION  LAW    493 

tion  .  .  .  constitute  a  mighty  mass  of  charters  which 
occupy  a  large  part  of  the  volumes  of  the  statute  law. 
The  demands  for  acts  of  incorporation  is  continually  in- 
creasing and  the  propensity  is  the  more  striking  as  it 
appears  to  be  incurable;  and  we  seem  to  have  no  moral 
means  to  resist  it,  as  was  done  at  Rome  by  the  unshaken 
determination  of  the  Emperor  Trojan." 
Of  the  policy  up  to  1826,  Kent  wrote:  ^ 

''There  has  been  a  disposition  in  some  of  the  States  to 
change  in  an  essential  degree  the  character  of  incorporated 
companies,  by  making  the  members  personally  responsible 
in  certain  events  and  to  a  qualified  extent  for  the  debts  of  the 
company.  This  is  intended  as  a  check  to  impro\ident 
conduct  and  abuse  and  to  add  to  the  general  security  of 
creditors;  and  the  policy  has  been  pursued  to  a  moderate 
and  reasonable  degree  only  in  Rhode  Island,  New  York, 
Maryland  and  South  Carolina.  .  .  .  The  tendency  of  legis- 
lation and  of  judicial  decisions  in  the  several  States  is  to  in- 
crease the  personal  responsibility  of  stockholders,  .  .  .  and 
to  give  them  more  and  more  the  character  of  partnerships 
with  some  of  the  power  and  privileges  of  corporations." 

Legislation  of  this  character  had  been  the  standing 
policy  of  Massachusetts  —  the  State  of  the  greatest  num- 
ber of  manufacturing  corporations  —  from  1809  to  182 7. ^ 

*  Kent's  Commentaries,  Vol.  II,  p.  273,  note  b  (5th  ed.,  1844). 

2  See  Remarks  of  Chief  Justice  Paxker  in  Marcy  v.  Clark,  17  !Mass.  335, 
in  182 1 : 

"The  legislature  have  thought  fit  and  we  think  wisely  to  subject  the 
property  of  all  members  of  these  corporations  to  a  hability  for  the  debts 
of  the  company.  By  this,  in  fact,  they  only  continue  the  principle  of  co- 
partnership in  operation;  and  considering  the  multitude  of  corporations 
which  the  increasing  spirit  of  manufacturing  gives  rise  to,  regard  to  the 
interest  of  the  communitj'  seems  to  require  that  the  individuals  whose 
property  thus  put  into  a  common  mass  enables  them  to  obtain  credit  uni- 
versally, should  not  shelter  themselves  from  a  responsibility  to  which  they 
would  be  liable  as  members  of  a  private  association. 

"Since  this  statute  was  enacted  all  who  deal  with  such  companies  look  for 
their  security  to  the  individual  members  rather  than  to  this  joint  stock." 


494  A  HISTORY  OF  THE  A:MERICAN  BAR 

But  in  his  message  to  the  Legislature,  June  2,  1825,  Gov- 
ernor Levi  Lincoln  recommended  a  relaxation  of  this  policy, 
saying: 

*'As  the  law  now  exists,  it  is  to  be  feared  that  no  incon- 
siderable portion  of  advantage  which  would  result  from 
the  employment  of  capital  in  a  profitable  business  and  from 
the  encouragement  of  an  industrious  population  is  lost 
to  the  Commonwealth. 

*'In  this  age  of  great  undertakings  and  of  strenuous 
competition  for  pre-eminence  in  local  advantages  and 
influence,  it  is  surely  wise  to  regard  with  care  the  perma- 
nent resources  of  the  Commonwealth.  These  will  be 
found  especially  to  consist  in  the  profitable  investment  at 
home  of  the  monied  capital  of  our  wealthy  citizens,  and  in 
the  encouragement  of  employment  thereby  of  an  ingenious, 
industrious  and  virtuous  population." 

And  in  his  message  of  May  31,  1826,  he  said: 

''The  number  of  corporations  already  created  and  the 
immense  amount  of  capital  employed  in  their  operation 
must  prevent  the  possibility  hereafter  of  a  successful  com- 
petition with  them  in  business  by  individual  means,  and 
presents  the  single  inquiry  whether  these  public  establish- 
ments can  advantageously  be  multiplied  and  encouraged. 
The  period  has  long  since  passed  in  which  the  manufacturing 
interest  could  be  regarded  as  unfavorable  to  commerce 
or  inconsistent  with  the  prosperity  of  an  agricultural 
people." 

"The  effect  has  been  to  drive  millions  of  capital  into 
other  States  for  investment."  —  "The  unreasonable  sever- 
ity of  the  present  law^s  is  a  subject  of  general  complaint." 
said  writers  in  the  American  Jurist,  in  1829  and  1830.^ 

*  See  Manufacturing  Corporations;  Constitutionality  of  Corporators 
Liability  Laws,  by  Charles  G.  Loring  in  American  Jurist,  Vol.  II  (1829); 
Vol.  IV  (1830);  Vol.  V  (1832). 

See  also,  St.  1808,  c.  65;  St.  1817,  c.  183;  St.  1821,  c.  38;  St.  1822,  c.  638; 
St.  1826,  c.  137;  St.  1829,  c.  53;  and  Child  v.  Coffin,  17  Mass.  64  (1820). 


RISE  OF  RAILROAD   AND   CORPORATION  LAW    495 

By  an  act  passed  in  1S30,  however,  Massachusetts  began 
to  adopt  a  more  liberal  policy  towards  stockholders.  At 
the  same  time,  nevertheless,  and  even  in  those  early  days 
of  corporate  activity,  there  was  generally  prevalent  a  fear 
of  the  increase  of  corporations,  an  example  of  wliich  may 
be  found  in  the  Ainericaji  Jurist,  in  October,  1830: 

"In  our  republics,  they  are  still  more  numerous;  and 
it  is  difficult  to  set  bounds  to  the  general  desire  to  increase 
them.  .  .  .  Unless  restrained  by  legislative  enactment, 
judicial  construction  or  the  good  sense  and  discretion  of 
the  stockholders,  they  will  absorb  the  greatest  part  of  the 
substance  of  the  Commonwealth.  The  extent  of  the  wealth 
and  power  of  corporations  among  us  demands  that  plain 
and  clear  laws  should  be  declared  for  their  regular  restraint; 
for  without  a  salutary  and  strict  control  over  them  every- 
one may  be  compelled  to  adopt  the  fears  of  the  Roman 
Emperor  who  when  requested  to  institute  a  fire  company 
of  150  men  on  an  assurance  that  they  should  not  exceed 
their  powers  beyond  the  objects  of  the  association,  refused 
the  grant,  observing  that  associations  had  greatly  dis- 
turbed the  peace  of  cities  and  whatever  name  he  gave 
them  they  would  not  fail   to  be  mischievous   (2   Kent, 

217)-  .  •     . 

"The  doctrine  of  corporations  in  this  country,  on  ac- 
count of  their  extent  as  well  as  the  defective  state  of  their 
existence  and  operation,  presents  a  most  interesting  field 
of  inquiry  to  American  jurists,  and  demands  that  their 
best  energies  should  be  applied  to  the  subject  and  that 
corporations  may  be  protected  and  wisely  directed  in 
eft'ecting  the  great  public  good  of  which  they  are  capable 
and  restrained  from  inflicting  the  public  and  private  exdls 
witliin  their  powers  and  to  which  they  are  often  tempted  by 
their  own  views  of  interest,  .  .  .  The  courts  of  Massachu- 
setts have  made  many  decisions  from  which  it  must  be 
inferred  that  they  favor  the  doctrine  and  are  inclined  to 
adopt  it  that  corporations  have  no  powers  but  such  as  are 
plainly  granted  in  their  charters  or  are  clearly  necessary 
to  effect  the  useful  purposes  for  wliich  they  were  created. 


496  A  HISTORY  OF  THE  AMERICAN  BAR 

Such  rules  of  construction  can  hardly  be  considered  yet 
as  established  an}^vhere  in  their  full  extent. 

''In  the  courts  above  referred  to  [N.  Y.,  U.  S.,  Mass.] 
the  Common  Law  incidents  to  corporations  are  sometimes 
cited  with  approbation,  and  in  other  State  courts  they 
are  generally  referred  to  without  qualification.  The  evident 
utility  of  the  new  construction  will  probably  soon  recom- 
mend it  to  general  adoption. 

"When  such  becomes  the  declared  law  of  the  States, 
and  when  it  shall  become  the  law  that  corporations  are 
generally  liable  for  the  acts  of  their  authorized  agents;  for 
contracts  by  implication;  for  all  wrongs  and  injuries  that 
they  are  capable  of  inflicting;  and  for  all  injurious  omis- 
sions to  perform  their  duties,  there  will  be  no  longer  need 
of  statutes  of  mortmain  and  wills;  or  constitutional  im- 
pediments or  restraints  to  the  multiplication  of  corporate 
charters.  It  might  still,  however,  be  wise  for  legislatures 
to  reserve  more  direct  control  over  corporations  of  future 
creation  than  they  are  accustomed  to  do  in  most  of  the 

"When  these  doctrines  shall  become  fully  established 
and  legislatures  grow  careful  to  reserve  visitorial  powers 
in  granting  charters  for  civil  corporations,  the  fear  and 
apprehension  of  corporations  now  existing  and  too  justly 
forced  by  experience  into  the  pubHc  mind,  will  probably 
subside.  Such  fears  have  induced  the  legislatures  in  some 
States  to  adopt  measures  which  should  and  to  a  great  extent 
do  deter  the  public  from  encountering  the  perils  resulting 
from  the  ownership  of  corporate  stocks."  ^ 

1  Governor  Lincoln  himself,  in  vetoing  a  bill  to  authorize  the  incorpo- 
ration of  the  Mozart  Association  in  Salem,  with  power  to  hold  real  estate 
to  the  value  of  $10,000,  said  February  16,  1827: 

"The  course  of  legislation  for  several  of  the  last  years  has  a  tendency  to 
absorb  individual  property  in  the  capital  of  corporations  and  thereby  to 
destroy  its  future  divisibility  and  voluntary  disposition  to  an  extent  I  be- 
lieve which  is  hardly  apprehended  by  the  community.  It  may  well  deserve 
regard  to  what  consequences  an  unrestricted  indulgence  in  this  policy  may 
lead.  .  .  .  The  worst  evils  of  a  monopoly  of  wealth  and  possessions  in 
corporations  on  the  one  hand,  and  of  consequent  poverty  and  dependence 
in  individuals  on  the  other,  will  commence  and  be  aggravated,  until  by  the 


RISE  OF  RAILROAD  AND   CORPOR.\TION  LAW    497 

After  1827,  the  more  liberal  legislation  limiting  stock- 
holders' liability  promoted  the  turning  of  partnerships 
into  trading  and  manufacturing  corporations.  The  pro- 
tective tariffs  and  the  increasing  production  of  coal  were 
a  great  factor  in  the  growth  of  these  corporations.  The 
e?qpiration  of  the  charter  of  the  United  States  Bank  in 
1836  caused  large  numbers  of  State  and  private  banks  to 
be  incorporated.  Life  insurance  corporations  were  just 
coming  into  existence.  Fire  insurance  corporations  were 
being  much  more  extensively  developed.  The  era  of  rail- 
road corporations  began  in  1830. 

By  1832,  the  body  of  corporation  law  had  become  so 
large  as  to  demand  a  text-book,  and  in  that  year  appeared 
the  first  American  and  the  first  modern  book  on  the  sub- 
ject—  Angell  and  Ames  on  Corporations.  In  the  preface, 
the  authors  stated: 

"The  inconvenience  experienced  from  the  want  of  a 
work  of  reference  upon  the  legal  rights  and  obligations 
which  grow  out  of  the  relations  between  a  body  corporate 
and  the  public  and  between  a  body  corporate  and  its 
members  has  in  this  country  long  been  a  subject  of 
complaint." 

And  they  cite  a  comment  by  Judge  Roger  in  Bushel  v. 
Comfnonwealth  Ins.  Co.  (15  Serg.  &  Rawle,  176): 

"With  the  multiplication  of  corporations  which  has 
and  is  taking  place  to  an  almost  indefinite  extent,  there 
has  been  a  corresponding  change  in  the  law  respecting 
them.  .  .  .  Tliis  change  of  law  has  arisen  from  that  silent 
legislation  by  the  people  themselves  which  is  continually 

intervention  of  statutes  of  mortmain  and  other  violent  legal  enactments, 
or  by  popular  excitement  and  revolution,  the  grievous  and  intolerable  pres- 
sure of  corporate  power  over  individual  possession  shall  be  removed  and 
property  again  be  restored  to  those  who  by  the  laws  of  nature  had  the 
original  right  to  its  enjoyment." 


498  A  HISTORY  OF  THE  AMERICAN  BAR 

going  on  in  a  country  such  as  ours,  the  more  wholesome 
because  it  is  gradual  and  msely  adapted  to  the  peculiar 
situation,  wants  and  habits  of  our  citizens."  ^ 

It  is  to  be  noted  that,  at  this  time,  most  of  these  cor- 
porations were  created  by  special  charters;  for  general  in- 
corporation acts  existed  in  but  few  States.-  The  first 
general  statute  had  been  enacted  in  Pennsylvania  in  1791, 
authorizing  incorporation  generally  of  literary,  charitable 
and  religious  associations.  In  New  York,  a  general  act 
for  public  Hbraries  was  passed  in  1796,  and  for  business 
corporations  in  181 1;  but  by  the  Constitution  of  182 1,  the 
people  of  the  State,  alarmed  at  the  tremendous  increase 
of  corporations,  provided  that  no  charter  should  be  granted 
except  by  a  two-thirds  vote  of  each  branch  of  the  Legisla- 
ture. Georgia  enacted  general  manufacturing  corporation 
acts  in  1843  ^^^  1845.  New  York  enacted  the  broadest 
general  corporation  act  in  the  country  in  1848;  and  in 
1849,  Pennsylvania  enacted  a  general  business  corpora- 
tion act.  Massachusetts  had  no  general  manufacturing 
or  banking  corporation  acts  until  as  late  as  185 1.  As  the 
Law  Reporter  stated  in  that  year  (Vol.  XIV) : 

"In  Massachusetts,  similar  provision  existed  before  in 
regard  to  parishes  and  religious  societies,  wharves  and 
some  other  real  estate  ownerships,  lyceums  and  cemeteries, 
and  some  other  specified  cases;  but  it  was  taken  for  granted 

1  Chief  Justice  Shaw  in  Tisdale  v.  Harris  (20  Pick.  9)  in  1838  holding 
stock  certificates  within  the  Statute  of  Frauds  said: 

"These  companies  have  become  so  numerous,  so  large  an  amount  of  the 
property  of  the  community  is  invested  in  them,  and  as  the  ordinary  indicia 
of  property  arising  from  delivery  and  possession  cannot  take  place,  there 
seems  to  be  peculiar  reasons  for  extending  the  provisions  of  the  statute  to 
them." 

^  See  Address  of  Henry  Hitchcock  in  Amer.  Bar  Ass.  Proc,  Vol.  X. 

In  1784  in  New  York,  and  in  1787  in  Delaware,  general  statutes  were 
enacted  for  incorporation  of  religious  societies. 


RISE  OF  CORPORATION  AND  RAILROAD  LAW    499 

that  such  provision  could  not  be  safely  applied,  as  it  had 
been  done  in  other  States,  to  corporations  generally,  and 
especially  those  of  a  trading  or  business  nature.  The  Legis- 
lature has  overstepped  this  hne  in  the  case  of  manufacturing 
companies  and  banks,  and  we  think  wisely.  We  believe 
...  we  shall  see  laws  passed  hereafter  to  meet  the  analo- 
gous cases  of  insurance  and  railroad  corporations."^ 

A  general  insurance  act  was  not  passed  in  Massachu- 
setts until  1872;  a  general  railroad  act,  until  1872;  and  a 
street  railway  act,  until  1874. 

The  influence  of  the  decision  in  the  Dartmouth  College 
Case  on  corporation  law  during  this  period  was  very  pro- 
nounced.    That  case,  deciding  that  a  corporate  charter 
was  a  contract  and  within  the  protection  of  the  United 
States  Constitution,  gave  a  great  impetus  to  the  creation 
of  corporations;   and  so  many  valuable  rights  were  irrevo- 
cably granted  away  in  corporate  charters  by  the  State 
Legislatures,  that  a  movement  began  to  change  this  con- 
dition of  affairs.     Acting  on  a  precedent  adopted  on  the 
suggestion  of  Chief  Justice  Parsons,  as  early  as  1809,  in 
an  act  incorporating  manufacturing  companies,  the  Legis- 
lature of  Massachusetts  in  1830  passed  a  general  statute 
relating   to   all   corporations,   and   making  every   charter 
thereafter  granted  subject  to  the  right  of  the  Legislature 
to  alter,  amend  or  repeal.    New  York  had  already  inserted 
a  smiilar  clause  in  its  Constitution  of  1826.    Connecticut 
and  other  States  had  been  accustomed  for  several  years  to 
append   such    clauses   to   all   special   corporate    charters. 
Wisconsin  followed  IVIassachusetts  in  1848,  and  California 
in  1849.    Many  States,  however,  still  hesitated,  especially 

»  The  number  of  special  charters  to  manufacturing  corporations  in 
Massachusetts  is  stated  in  the  Law  Reporter,  Vol.  XXII,  in  1859,  as  fol- 
lows: between  17S0  and  1809,  9;  1800-1817,  loo;  1780-1835,  500;  1S35- 
1859,  about  30  per  annum. 


500  A  HISTORY  OF  THE  AMERICAN  BAR 

those  that  were  undeveloped  and  had  the  greatest  need 
for  corporations.^ 

In  1838,  a  question  of  corporate  law  arose,  the  decision 
of  which  was  likely  to  affect  the  course  of  commercial  deal- 
ings in  the  United  States  to  a  greater  degree  than  any 
decision  since  that  in  the  great  steamboat  case  of  Gibbons 
V.  Ogden,  in  1824. 

In  the  United  States  Circuit  Court  in  Alabama,  a  rail- 
road company  incorporated  in  Louisiana  had  brought  suit 

*  Rise  and  Probable  Decline  of  Private  Corporations,  by  Andrew  Allison, 
Amer.  Bar  Ass.  Proc,  Vol.  IV  (1881). 

It  is  interesting  to  note  that  the  fear  of  corporations  continued  extremely 
prevalent.  It  was  well  stated  by  a  Massachusetts  lawyer  of  prominence, 
Robert  Rantoul,  Jr.,  in  an  argument,  made  in  1835  in  the  Massachusetts 
Legislature,  in  protest  against  a  special  charter  to  an  iron  and  steel  com- 
pany with  a  capital  as  large  as  $500,000: 

"The  evil  of  incorporation  had  become  so  great  that  the  justice  of  the 
opinions  expressed  in  Gov.  Lincoln's  message  (vetoing  the  incorporation 
of  the  Mozart  Society)  was  immediately  acknowledged  by  the  Legislature. 
This  evil  has  increased;  it  is  infinitely  greater  now  than  it  was  in  1827;  and 
by  and  by  the  subject  will  become  the  first  in  the  eye  of  the  people.  The 
people  wiU  stand  up  against  corporations.  They  will  say,  'we  will  see 
whether  the  citizens  of  the  Commonwealth  are  to  govern  themselves  or  are 
to  be  governed  by  corporations.'  ...  A  great  party  will  grow  up  against 
them,  and  then  corporations  must  look  to  themselves.  .  .  .  Agrarianism, 
levelling.  Jacobinism,  war  of  the  poor  against  the  rich  —  these  are  the  cries 
against  me.  This  is  stale  trash.  ...  In  all  the  earliest  manufacturing  cor- 
porations the  stockholders  were  mostly  leading  federalists,  and  the  whole 
power  of  the  corporation  was  federal  power." 

Two  years  later,  in  1837,  the  same  apprehension  as  to  monopolies  and 
wealthy  corporations  appeared  judicially  in  the  opinion  given  by  Judge 
Marcus  Morton  of  the  Massachusetts  Supreme  Court  in  Alger  v.  Thatcher 
(19  Pick.  51).  This  was  the  first  well  considered  case  on  restraint  of  trade 
decided  in  the  United  States  and  Judge  Morton  said: 

"The  law  ...  is  found  on  great  principles  of  public  policy  and  car- 
ries out  our  constitutional  prohibition  of  monopolies  and  exclusive  privi- 
leges. .  .  .  Such  contracts  .  .  .  prevent  competition  and  enhance  prices. 
They  expose  the  public  to  all  the  evils  of  monopoly.  And  this  especially 
is  applicable  to  wealthy  companies  and  large  corporations  who  have  the 
means  unless  restrained  by  law  to  exclude  rivalry,  monopolize  business  and 
engross  the  market." 


RISE  OF  RAILROAD  AND  CORPORATION  LAW    501 

on  a  bill  of  exchange  made  and  discounted  by  it  in  Ala- 
bama. The  question  had  thus  been  presented  of  the  power 
of  a  corporation  to  make  and  sue  on  a  contract,  signed 
outside  the  State  in  which  it  was  chartered.  To  the  sur- 
prise and  consternation  of  the  business  interests  of  the 
country,  Mr.  Justice  McKinley  of  the  United  States  Su- 
preme Court,  sitting  in  the  Circuit  Court,  decided  that  a 
corporation  had  no  power  to  do  business  in  a  State  other 
than  that  in  which  it  was  incorporated.  The  effect  pro- 
duced by  this  decision  is  graphically  described  by  Judge 
Story  in  a  letter  to  Charles  Sumner,  June  17,  1838:  ^ 

"My  brother  McKanley  has  recently  made  a  most  sweep- 
ing decision  in  the  Circuit  Court  in  Alabama  which  has 
frightened  half  the  lawyers  and  all  the  corporations  of  the 
country  out  of  their  proprieties.  He  has  held  that  a  cor- 
poration created  in  one  State  has  no  power  to  contract 
(or,  it  would  seem,  even  to  act)  in  any  other  State  either 
directly  or  by  an  agent.  So  banks,  insurance  companies, 
manufacturing  companies,  etc.,  have  no  capacity  to  take  or 
discount  notes  in  another  State  or  to  underwrite  policies 
or  to  buy  or  sell  goods.  The  cases  in  which  he  has  made 
these  decisions  have  gone  to  the  Supreme  Court.  What  say 
you  to  all  this?    So  we  go!" 

As  the  Bank  of  the  United  States  and  other  moneyed 
corporations  had,  for  many  years,  been  in  the  habit  of  dis- 
counting bills  in  States  throughout  the  country,  this  de- 
cision opened  the  door  to  widespread  repudiation  of  their 
obligations  by  debtors  whose  contracts  were  made  in  States 
other  than  the  chartering  State.  These  debtors  at  once 
took  advantage  of  the  defense  thus  offered  to  them.  Man- 
ufacturing and  trading  corporations  hesitated  to  continue 
to  do  business  in  outside  States.  The  business  of  the  fire 
and  life  insurance  companies  which  were  just  being  organ- 

>  Unpublished  letter  in  Sumner  Papers  in  Harv.  Coll.  Library. 


502  A  HISTORY  OF  THE  AMERICAN  BAR 

ized  for  the  first  time  to  any  great  extent,  was  curtailed. 
General  commercial  confusion  ensued.  The  disastrous 
result  of  this  decision  was  also  enhanced  by  its  being  ren- 
dered at  a  time  when  the  effects  of  the  great  financial  panic 
of  1837  were  still  being  severely  felt. 

Ex-Chancellor  Kent  and  other  eminent  lawyers,  being 
consulted,  gave  their  opinions  against  the  doctrine  laid 
down  by  Judge  McKinley.^  Steps  were  at  once  taken  to 
carry  the  case  to  the  United  States  Supreme  Court.  Ac- 
cordingly, in  1839,  the  great  case  of  Bank  of  Augusta  v. 
Earle  (13  Peters,  519)  was  argued  before  that  Court  by  David 
B.  Ogden  of  New  York,  Daniel  Webster  of  Massachusetts 
and  John  Sergeant  of  Pennsylvania,  against  Charles  J. 
Ingersoll  of  Pennsylvania  and  William  H.  Crawford  of 
Georgia.^ 

The  arguments  were  largely  based  on  considerations  of 
pubHc  policy  and  economics,  the  counsel  for  the  plaintiffs 
arguing  with  great  ardor  the  inconvenience,  mischief,  in- 
justice and  injury  which  would  result  to  commerce  and 
trade,  if  the  decision  of  the  Circuit  Court  should  be  upheld. 

Thus  David  B.  Ogden  argued: 

"A  deeper  wound  will  be  inflicted  on  the  commercial 
business  of  the  United  States  than  it  has  ever  sustained. 
The  principal  means  by  which  the  commercial  dealings 
between  the  States  of  the  United  States  and  Alabama  is 
conducted  will  be  at  an  end;  and  there  will  be  no  longer 
the  facilities  for  intercourse  for  the  purposes  of  traffic  by 
which  alone  it  is  prosperous  and  beneficial.  .  .  .  The  pur- 
chases of  bills  of  exchange  in  that  State  are  extensively 
made  by  the  agents  of  corporations  of  other  States;  thus 
by  the  competition  which  is  produced,  the  rates  of  ex- 

^  See  opinion  of  Kent,  printed  in  full  in  Law  Reporter,  Vol.  I,  July,  1838. 

2  There  were  three  cases  consolidated  for  argument  —  New  Orleans  and 
Carrollton  R.  R.  Co.  v.  Earle,  Bank  of  the  United  States  v.  Earle,  and  Bank 
of  Augusta  V.  Earle. 


RISE  OF  RAILROAD  AND   CORPORATION  LAW    503 

change  are  kept  in  due  proportion  to  those  of  other  States. 
The  large  productions  of  cotton  in  that  State  are  thus  enabled 
to  realize  to  the  planter  a  proper  and  an  equal  price  to 
that  obtained  by  the  planter  in  the  neighboring  States. 
The  proposition  in  the  Circuit  Court  ...  is  that  a  cor- 
poration of  one  State  can  do  no  commercial  business,  can 
make  no  contract  and  can  do  nothing  in  any  State  of  the 
Union  but  in  that  in  which  it  has  been  created.  The 
proposition  is  the  more  injurious  as  in  the  United  States 
associated  capital  is  essentially  necessary  to  the  operations 
of  commerce  and  the  creation  and  improvement  of  the 
facilities  of  intercourse  which  can  only  be  accomplished  by 
large  means.  .  .  .  One  of  the  most  important  objects 
and  interests  for  the  preservation  of  the  Union  is  the  es- 
tablishment of  railroads.  Cannot  the  railroad  corporations 
of  New  York,  Pennsylvania  or  Maryland  make  a  contract 
out  of  the  State  for  materials  for  the  construction  of  a 
railroad?  Cannot  these  companies  procure  machinery 
to  use  on  their  railroads,  in  another  State?" 

And  Daniel  Webster  said: 

"A  learned  gentleman  on  the  other  side  said  the  other 
day  that  he  thought  he  might  regard  himself  in  this  cause 
as  having  the  country  for  his  client.  ...  I  agree  with 
the  learned  gentleman,  and  I  go  indeed  far  beyond  him 
in  my  estimate  of  the  importance  of  this  case  to  the  country. 
.  .  .  For  myself,  I  see  neither  limit  nor  end  to  the  calam- 
itous consequences  of  such  a  decision.  I  do  not  know 
where  it  would  not  reach,  what  interests  it  would  not 
disturb,  or  how  any  part  of  the  commercial  system  of  the 
country  would  be  free  from  its  influence,  direct  or  remote." 

On  the  other  side,  Charles  J.  Ingersoll  pointed  out  the 
danger  of  increasing  the  power  of  corporations  in  this  coun- 
try, and  insisted  that  a  State  ought  not  to  be  forced,  by 
any  doctrine  of  comity  or  otherwise,  to  allow  a  corporation 
of  another  State  to  do  business  wdthin  its  borders: 

"It  is  true  that  in  order  to  keep  pace  vnth  the  flood  of 
these  associations,  the  Common  Law  wnth  its  character- 


504  A  HISTORY  OF  THE  AMERICAN  BAR 

istic  adaptation  to  exigencies  has  counteracted  their  in- 
tolerable privilege  by  holding  them  to  personal  liability. 
.  .  .  Power  to  pronounce  it  (the  Common  Law)  impolitic, 
to  break  in  upon  or  discard  it,  if  it  exists  in  any  court  should 
be  sparingly  exercised.  .  .  .  These  United  States  as  such 
can  have  no  private  corporation;  and  if  upon  false  no- 
tions of  commercial  intimacy  they  are  to  be  consolidated 
by  traders,  corporations  and  professional  dogmas,  contrary 
to  the  true  spirit  of  our  political  institutions,  not  only  the 
rights  of  all  the  States  but  the  Federal  Constitution 
itself  will  be  at  an  end.  ...  It  is  confidently  submitted 
to  the  Court  that  it  will  best  fulfil  its  duties  by  holding  the 
States  united  by  sovereign  ties;  by  the  State  remaining 
sovereign  and  the  corporations  subject;  not  by  sovereign 
corporations  and  subject  States.  ...  If  courts  are  bound 
by  Common  Law  to  restrict  corporations  to  the  specific 
purposes  of  their  creation,  they  are  bound  by  the  same 
Common  Law  to  prevent  their  wandering  out  of  place  as 
much  as  out  of  purpose.  .  .  .  This  is  perhaps  a  question 
rather  of  poHtics  than  of  jurisprudence." 

The  Court,  in  an  opinion  rendered  by  Chief  Justice 
Taney,  overruled  the  Circuit  Court  and  denied  the  doc- 
trine of  the  confinement  of  a  corporation  to  business  within 
the  State  of  its  charter.  From  the  decision  of  this  case, 
therefore,  the  great  development  of  interstate  corporate 
business  may  be  said  to  date. 

The  following  interesting  comment  is  made  by  William 
M.  Meigs  in  his  Life  of  Charles  J.  Ingersoll: 

"This  was  a  very  important  case  —  rather  one  of  politics 
or  public  law  than  of  mere  private  right  between  suitors. 
Mr.  Ingersoll  .  .  .  entered  into  the  case  with  intense 
interest  .  .  .  and  was  evidently  disappointed  at  losing, 
and  wrote  to  Mr.  (Henry  D.)  Gilpin  to  that  effect,  but 
was  told  in  reply  that  he  should  not  be  worried  at  his 
inability  to  defeat  a  corporation  when  the  whole  country 
had  to  bear  them,  as  Sinbad  had  his  burden.  .  .  .  The 
prevailing  view  today  probably  is  that  the  decision  was 


RISE  OF  RAILROAD   AND   CORPORATION  LAW    5=5 

both  right  and  desirable;  but  such  questions  were  then 
far  more  open  to  doubt  in  the  public  mind  than  now;  and 
the  thoughtful  observer  may  well  question  in  view  of  the 
unrest  now  so  prevalent  (1897)  and  the  so  general  feeling  that 
organized  capital  has  too  much  power,  whether  our  country 
might  not  have  been  more  sound  at  the  core  if  some  of  the 
most  important  decisions  had  gone  the  other  way." 

One  other  decision  of  the  United  States  Supreme  Court 
during  this  period  had  immense  effect  on  the  growth  of 
modern  corporate  commerce. 

From  1809  to  1844,  it  had  been  held  by  that  Court,  ever 
since  the  decision  of  Chief  Justice  Marshall  in  Bank  of  the 
United  States  v.  Deveaux  (5  Cranch,  61),  that  the  Federal 
Courts  had  no  jurisdiction  on  the  ground  of  diverse  citizen- 
ship, in  a  case  where  a  corporation  was  a  party,  unless  all 
the  individual  stockholders  of  the  corporation  were  citizens 
of  a  State  other  than  that  of  the  other  party  to  the  suit. 
Such  a  doctrine  of  course  greatly  restricted  the  rights  of 
a  corporation  to  sue  in  a  Federal  Court,  and  made  such  suit 
almost  impossible. 

In  1844,  however,  in  Louisville  R.  R.  v.  Letson  (2  Howard, 
497)  Chief  Justice  Taney  delivered  an  opinion,  taking  the 
broad  ground  that  a  corporation,  although  an  artificial 
person,  was  to  be  deemed  an  inhabitant  of  the  State  of  its 
incorporation,  and  to  be  treated  as  a  citizen  of  that  State 
for  purposes  of  suit.  Of  this  case.  Judge  Story,  wrote  to 
Ex-Chancellor  Kent,  August  31,  1S44: 

"I  equally  rejoice,  that  the  Supreme  Court  has  at  last 
come  to  the  conclusion,  that  a  corporation  is  a  citizen,  an 
artificial  citizen,  I  agree,  but  still  a  citizen.  It  gets  rid  of  a 
great  anomaly  in  our  jurisprudence.  This  was  always 
Judge  Washington's  opinion.  I  have  held  the  same  opinion 
for  very  many  years,  and  Mr.  Chief  Justice  IMarshall  had, 
before  his  death,  arrived  at  the  conclusion,  that  our  early 
decisions  were  wrong." 


5o6  A  mSTORY  OF  THE  AMERICAN  BAR 

In  1853,  in  Marshall  v.  Baltimore  and  Ohio  R.  R.  (16  How- 
ard, 314)  it  was  held  that  there  was  a  conclusive  presump- 
tion of  law  that  all  the  shareholders  were  citizens  of  the 
State  of  incorporation;  and  this  was  further  strengthened 
by  a  decision  in  1857,  in  Covington  Drawbridge  Co.  v.  Shep- 
herd (20  Howard,  227)  that  parties  were  to  be  held  estopped 
from  denying  such  citizenship.^ 

These  decisions  not  only  opened  the  door  wide  to  inter- 
state commerce  by  corporations,  but  they  were  of  vast 
importance  in  breaking  down  the  barriers  sought  to  be 
erected  by  the  poHtical  supporters  of  the  narrow  States' 
Rights  doctrines,  and  in  increasing  the  strength  of  the 
Federal  power. 

In  one  direction,  the  great  growth  of  corporations  made 
necessary  the  development  of  a  branch  of  corporate  law 
to  which  Uttle  attention  had  hitherto  been  paid  —  the 
limits  of  the  scope  of  corporate  action  and  the  doctrine  of 
ultra  vires.  As  stated  in  the  preface  to  the  first  book  on  this 
subject,  Brice  on  Ultra  Vires  published  in  1874,  it  is  said: 

"The  doctrine  of  ultra  vires  is  of  modem  growth.  Its 
appearance  as  a  distinct  fact  and  as  a  guiding  and  rather 
misleading  principle  in  the  legal  system  of  this  country 
dates  from  about  1845,  being  first  prominently  mentioned 
in  the  cases,  in  equity  of  Colman  v.  Eastern  Counties  Ry. 
Co.  (10  Beavan,  i)  in  1846,  and  at  law  of  East  Anglian 
Ry.  Co.  V.  Eastern  Counties  Ry.  Co.  (11  C.  B.  775)  in  1851." 

In  the  United  States  Supreme  Court,  however,  in  1858, 
it  was  referred  to  as  "not  a  new  principle  in  the  juris- 
prudence of  this  Court."  ^ 

1  For  interesting  articles  on  this  subject  see  A  Legal  Fiction  with  its  Wings 
Clipped,  by  S.  E.  Baldwin,  in  Amer.  Law  Review,  Vol.  XLI  (1907).  Abro- 
gation of  Federal  Jurisdiction,  by  Alfred  Russell,  Harv.  Law  Review,  Vol.  VII 
(1892).  Corporate  Citizenship  a  Legal  Fiction,  by  R.  M.  Benjamin,  Albany 
Law  Journal,  Vol.  LXIX  (1907). 

2  Pearce  v.  Railroad  Co.,  21  Howard,  441. 


RISE  OF  RAILROAD  AND  CORrORATION  LAW    507 

This  period,  1830-1860,  also  witnessed  the  beginning  of 
the  formation  of  the  law  as  to  the  financial  management  of 
corporations  —  questions  relating  to  the  status  of  shares 
of  stock,  overissues,  fully  paid  stock,  coupon  bonds  and 
the  like,  the  law  as  to  which,  however,  was  not  finally  put 
in  satisfactory  shape  until  after  i860.  The  rudimentary 
conditions  of  the  law  as  to  the  financing  of  corporations 
may  be  gathered  from  the  following  statements  in  Redfield 
on  Railways,  published  in  1858: 

"But  few  questions  in  regard  to  the  subject  of  railway  in- 
vestments have  been  definitely  settled  in  this  country.  .  .  . 
There  have  been  some  expedients  resorted  to  for  puq3ose  of 
enabling  companies  to  complete  their  works  without  the 
requisite  capital  bona  fide  subscribed  paid,  which,  as  they 
do  not  seem  to  have  come  much  under  discussion  in  the 
judicial  tribunals  of  the  country,  we  could  do  little  more  than 
allude  to,  but  which  have  so  serious  a  bearing  upon  the 
safety  and  permanent  value  of  railway  investments  that 
we  could  not  perhaps  with  perfect  propriety  altogether 
pass  over  them.  .  .  . 

"There  is  very  little  law  as  yet  in  this  country  as  to  the 
power  of  a  railway  corporation  to  mortgage  the  property 
and  franchise  without  statutory  authority." 


CHAPTER  XIX 

THE  ERA  OF  CODES,  1820-1860 

The  years  1820-1850  were  a  period  not  only  of  adjust- 
ment of  the  Common  Law  to  fit  modern  conditions,  but 
also  of  a  widespread  movement  towards  the  codification  of 
the  law. 

So  many  new  subjects  of  legislation  had  arisen,  so 
many  changes  from  the  old  Common  Law  had  been  made 
necessary  by  the  new  economic  and  social  conditions, 
that  the  statute  books  of  most  of  the  older  States  con- 
tained an  accumulation  of  resolves  and  statutes,  contra- 
dictory, illogical,  imnecessary,  partly  repealed,  and  partly 
obsolete. 

The  popular  trend  towards  codification  was  the  result  of 
five  intermingling  factors:  first,  the  old,  underlying  an- 
tagonism of  the  American  public  towards  the  Common 
Law,  as  being  of  English  origin;  second,  the  ever-active 
jealousy,  entertained  by  laymen  in  a  democracy,  towards 
lawyers,  as  a  privileged  class  and  a  monopoly,  and  the  con- 
sequent desire  to  make  the  law  a  layman's  law;  third,  the 
"increase  in  the  munber  of  law  reports  deemed,  even  then, 
to  be  "vast  and  unwieldy;"  fourth,  the  success  of  the 
Code  Napoleon  in  Europe;  fifth,  the  influence  of  Jeremy 
Bentham. 

Of  the  existence,  as  late  as  1820,  of  the  popular  preju- 
dices against  the  Common  Law  because  it  was  English, 
description  has  already  been  given.    A  conservative  ex- 


THE  ERA  OF  CODES,  1S20-1860  509 

presslon  of  this  feeling  was  given  by  Charles  J.  Ingersoll, 
an  eminent  lawyer  of  Pliiladelphia,  in  an  address  made  by 
him  in  1823,  as  follows:  ^ 

"The  number  of  the  Bar  has  been  lately  computed  at 
6,000,  which  is  probably  an  under  estimate.  American 
lawyers  and  judges  adhere  with  professional  tenacity 
to  the  laws  of  the  Mother  Country.  The  absolute 
authority  of  recent  EngHsh  adjudications  is  disclaimed; 
but  they  are  received  with  a  respect,  too  much  border- 
ing on  submission.  British  Commercial  Law,  in  many 
respects  inferior  to  that  of  the  continent  of  Europe,  is 
becoming  the  law  of  America.  The  prize  law  of  Great 
Britain  was  made  that  of  the  United  States  by  judicial 
legislation  during  flagrant  war  between  the  two  countries. 
.  .  .  Our  professional  bigotry  has  been  counteracted  by 
penal  laws  in  some  States  against  the  quotation  of  recent 
British  precedents,  as  it  was  once  a  capital  offence  in  Spain 
to  cite  the  Civil  Law,  and  as  the  English  Common  Law  has 
always  repelled  that  excellent  code  from  its  tribunals.  .  .  . 

"...  I  deplore  the  colonial  acquiescence  in  which  they 
(the  late  English  law  books)  are  adopted,  too  often  with- 
out probation  or  fitness.  The  use  and  respect  of  American 
Jurisprudence  in  Great  Britain  will  begin,  only  when  we 
cease  to  prefer  their  adjudications  to  our  own.  By  the 
same  means,  we  shall  be  relieved  from  disadvantageous 
restrictions  on  our  own  use  of  British  wisdom;  and  our 
system  will  acquire  that  level  to  which  it  is  entitled  by  the 
education,  learning  and  purity  of  those  by  whose  admin- 
istration it  is  formed. 

"...  The  brutal,  ferocious  and  inhuman  law  of  the 
feudists,  as  they  were  termed  by  the  civilians  (I  use  their 
own  phrase),  the  arbitrary  rescripts  of  the  Civil  Law,  and 
the  harsh  doctrines  of  the  Common  Law  have  all  been  melted 
down  by  the  genial  mildness  of  American  institutions. 
Most  of  the  feudal  distinctions  between  real  and  personal 
property,    complicated    tenures,    and   primogeniture,    the 

*  A  Discmirse  concerning  the  Influence  of  America  on  the  Mind,  by  Charles 
J.  Ingersoll  (1823). 


510  A  HISTORY  OF  THE  AMERICAN  BAR 

salique  exclusion  of  females,  the  unnatural  rejection  of 
the  half-blood,  and  ante-nuptial  offspring,  forfeitures  for 
crimes,  the  penalties  of  alienage,  and  other  vices  of  Euro- 
pean jurisprudence,  which  nothing  but  their  existence  can 
defend,  and  reason  must  condemn  are  either  abolished 
or  in  a  course  of  abrogation  here.  Cognisance  of  marriage, 
divorce  and  posthumous  administration,  taken  from  ec- 
clesiastical, has  been  conferred  on  the  civil,  tribunals. 
Voluminous  conveyancing  and  intricate  special  pleading, 
among  the  costliest  systems  of  professional  learning  in 
Great  Britain,  have  given  place  to  the  plain  cheap  sub- 
stitutes of  the  old  Common  Law.  .  .  .  Sanguinary  and 
corporal  punishments  are  yielding  to  the  interesting  ex- 
periment of  penitential  confinement." 

A  natural  result  of  this  trend  of  thought  was  to  incul- 
cate the  belief  that  a  brand  new  body  of  strictly  American 
law  could  and  should  be  constructed  and  formulated  in 
codes,  which  would  render  the  United  States  independent 
of  English  law. 

The  second  factor  —  the  jealousy  of  lawyers  because  of 
their  supposed  special  privileges  —  a  deeply  rooted  feeling 
which  had  existed  in  the  United  States  for  almost  two  cen- 
turies, was  the  influence  which  especially  led  to  the  statu- 
tory revision  of  the  old  Common  Law  system  of  pleading; 
for  the  intricate  science  of  special  pleading  and  the  tech- 
nicalities of  the  Common  Law  were  supposed  to  be  the 
means  adopted  by  the  lawyers,  as  a  class,  to  disable  the 
uninitiated  from  maintaining  or  defending  their  causes  in 
courts.  The  Bar  Associations  and  the  Bar  rules  were  also 
supposed  to  protect  lawyers  in  their  attempt  to  monopo- 
lize a  knowledge  of  the  law.  It  was  to  render  this  monopoly 
less  possible  that  the  laymen  were  anxious  by  legislation 
to  make  law  so  plain,  that  every  man  might  be  his  own 
lawyer. 

In   1786,   as  already  described,   the  prejudice  against 


THE  ERA  OF  CODES,  1820-1860  511 

lawyers  resulted  in  violent  outbreaks  against  them  as  "an 
undemocratic  order;"  and  many  plans  had  been  promul- 
gated for  a  total  reform  in  the  system  of  Bar  rules  and  Bar 
Associations  in  the  New  England  States  and  elsewhere. 
Nearly  fifty  years  later,  in  1832,  a  layman  of  Essex  County 
in  Massachusetts,  whose  right  to  appear  as  attorney  in  a 
court  case  had  been  questioned  by  Rufus  Choate,  published 
an  open  letter  to  Choate  in  which  the  alleged  attitude  of 
the  legal  profession  was  thus  complained  of :  ^ 

"But  you  have  other  arts  still  more  effectual  to  secure 
your  privileged  order  a  monopoly  in  the  practice  of  the 
law.  By  adopting  the  Common  Law  of  Great  Britain,  the 
customs  of  the  most  barbarous  ages,  and  of  a  nation  whose 
principles  of  government  are  totally  abhorrent  to  our 
own,  customs  contained  in  a  thousand  different  books  so 
intricate,  so  ambiguous,  so  contradictory  that  no  man 
ever  yet  understood  them  —  and  by  involving  the  practice 
of  the  law  in  inexplicable  obscurity  and  formality,  by  the 
adoption  of  all  the  cumbrous  learning  of  special  feeling, 
by  motions  for  non-suits,  for  discontinuances,  for  nolle 
prosequi,  for  retraxit,  for  injunctions,  for  continuance; 
by  imparlance,  by  whole  defence,  by  half  defence,  by  oyers, 
by  proferts,  by  vouchers,  by  aid  prayers,  by  tenders,  by 
protestandoes,  by  estoppels,  by  averments,  by  giving 
color,  by  demurring  for  duplicity,  for  departure,  for  repug- 
nance, for  negative  pregnants,  for  surplusage,  for  prolixity, 
for  verification ;  by  pleading  generally,  by  pleading  specially, 
by  pleading  double,  by  pleading  in  abatement,  by  replication, 
by  rejoinders,  by  surrejoinders,  by  rebutters,  by  surrebutters, 
by  joining  issue;  by  hard  words  in  the  Saxon,  in  the  Nor- 
man, in  the  French,  in  the  Latin;  and  by  having  the  judges 
also  members  of  your  fraternity  and  interested  in  your 
monopoly  —  you  have  heretofore  contrived  to  exclude 
everyone  who  would  not  submit  to  your  offensive  exactions, 

^  A  Letter  to  the  Hon.  Rufus  Choate  containing  a  brief  exposure  of  Law 
Craft  and  some  of  the  encroachments  of  the  Bar  upon  the  Rights  and  Liberties 
of  the  People,  by  Frederic  Robinson  (1S32). 


512  A  fflSTORY  OF  THE  AMERICAN  BAR 

to  all  your  unconstitutional  rules,  and  regulations,  from 
the  important  right  of  doing  business  in  our  public  courts. 
It  seems  to  have  been  the  whole  study  of  your  brotherhood 
in  this  way  to  involve  the  laws  and  the  practice  of  the  laws 
in  such  a  dark  maze  of  uncertainty  as  to  render  it  impos- 
sible for  anyone  to  practise  law,  without  a  previous  under- 
standing with  every  other  practitioner." 

In  fact,  this  popular  feeling  against  lawyers  as  a  privi- 
ledge  body  almost  warranted  De  Tocqueville's  well  known 
description  (written  in  1835)  of  the  American  lawyers,  as 
"the  American  aristocracy:" 

"The  special  information  which  lawyers  derive  from 
their  studies  ensures  them  a  separate  station  in  society; 
and  they  constitute  a  sort  of  privileged  body  in  the  scale 
of  intelligence.  .  .  .  Lawyers  are  attached  to  public  order 
beyond  every  other  consideration  and  the  best  security 
of  public  order  is  authority.  ...  In  the  mind  of  an  EngUsh 
or  an  American  lawyer,  a  taste  and  reverence  for  what  is 
old  is  almost  always  united  to  a  love  of  regular  and  lawful 
proceedings.  ...  In  America  there  are  no  nobles  or  lit- 
erary men,  and  the  people  are  apt  to  mistrust  the  wealthy; 
lawyers  consequently  form  the  highest  poUtical  class  and 
the  most  cultivated  circle  of  society.  They  have  therefore 
nothing  to  gain  by  innovation,  which  adds  a  conservative 
interest  to  their  natural  taste  for  public  order.  If  I  were 
asked  where  I  place  the  American  Aristocracy,  I  should 
reply  without  hesitation,  that  it  is  not  composed  of  the 
rich,  who  are  united  by  no  common  tie,  but  that  it  occupies 
the  judicial  bench  and  the  bar." 

The  third  factor  in  the  movement  towards  codification 
in  the  United  States  was  the  success  in  Europe  of  the 
various  Codes  known  as  the  Code  Napoleon.  These  Codes, 
being  published  in  this  country  about  the  time  of  the  War 
of  181 2,  when  the  anti-English  feeling  was  at  its  height, 
naturally  met  with  favorable  consideration.^ 

1  See  Review  of  The  Code  Napoleon,  by  Edward  Everett  —  North  American 
Revieu;  Vol.  XX  (1825). 


THE  ERA  OF  CODES,  1820-1860  513 

The  most  important  factor,  however,  in  the  crusade  for 
the  codification  of  the  law  was  the  influence  of  the  works 
of  Jeremy  Bentham  and  his  followers.  It  was  Bentham 
who  first  impressed  the  subject  upon  the  public  mind  of 
England.  He  was  the  inventor  of  the  words,  "codify," 
and  "codification."  In  fact,  the  word  "code,"  in  its  modern 
significance,  does  not  appear  to  have  been  in  common  use, 
prior  to  1797  —  forty-nine  years  after  his  birth;  though 
several  of  the  old  English  law  books  have  been  designated 
as  codes,  by  writers  who  apply  the  word  wrongly  to  any 
unoflScial  compilation  of  the  law  —  such  as  the  Miroir  des 
Justices  (written  in  1307  and  first  printed  in  1642).^  The 
true  meaning  of  the  word,  however,  is  the  official  declara- 
tion of  the  body  of  the  law  or  of  sections  of  law  by  legisla- 
tive or  executive  act,  and  it  was  to  obtain  a  code  of  this 
kind  that  Bentham  devoted  his  lifelong  labors.  The  first 
movement  towards  such  a  code  in  England  was  taken  by 
Francis  B-icon,  who,  when  only  thirty-one  years  old,  pro- 
posed in  the  House  of  Commons,  in  1592,  a  plan  to  amend 
and  consoHdate  the  whole  body  of  English  law.  About 
fifty  years  later,  in  Cromwell's  time,  a  Commission  was 
appointed  to  take  into  consideration  "what  inconveniences 
there  are  in  the  law  and  how  the  mischiefs  that  grow  from 
the  delay,  the  changeableness,  and  the  irregularities  in 
law  proceedings  may  be  prevented  and  the  speediest  way 
tp  reform  the  same."    And  in  1653,  Sir  Matthew  Hale,  as 

/    See  also  The  Historical  Development  oj  Code  Pleading,  by  Charles  ^M. 
jHepburn  (1897). 

j  The  Code  Civile  was  reported  in  1801,  by  the  Commission  appointed  to 
(draft  it,  and  it  was  published  in  France  in  1805;  the  Code  de  Procedure 
Civile  was  published  in  France  in  1806;  the  Code  de  Commerce  and  the  Code 
Patale  were  published  in  France,  in  181 7  and  1810,  respectively,  and  by  Peter 
S.  DuPonceau,  in  the  United  States  in  the  American  Review  (\'ol.  II),  in 
iSii  (the  former  being  also  republished  in  the  United  Stales  Lan'  Journal,  in 
1823);  the  Code  d' Instruction  Crimitulle  was  published  in  France,  in  1S08. 
1  See  Early  English  Codes,  in  Law  Mag.  and  Rev.,  Vol.  XXX  (1870-1871). 


514  A  HISTORY  OF  THE  AMERIC\N  Bx\R 

chairman  of  a  Commission,  of  which  Cromwell  himself, 
Sir  Algernon  Sydney,  and  Sir  Anthony  Ashley  Cooper 
were  also  members,  drew  up  a  plan  for  law  reform.  It 
failed  of  adoption,  however.  "The  lawyers  were  opposed," 
said  Cromwell.  "These  sons  of  Zeruiah  are  yet  too  strong 
for  us;  and  we  cannot  mention  the  reformation  of  the  law 
but  they  presently  cry  out  we  design  to  destroy  propriety." 
That  grave  need  of  at  least  a  statutory  revision  was  felt 
even  in  those  days,  may  be  seen  from  the  following  entry  in 
Pepys  Diary,  April  25,  1666: 

"Mr.  Prin,  till  company  came  did  discourse  with  me  a 
good  while  about  the  laws  of  England,  telling  me  the  main 
faults  in  them;  and  amongst  otliers  their  obscurity  through 
multitude  of  long  statutes,  which  he  is  about  to  abstract 
out  of  all  of  a  sort,  and  as  he  lives  and  Parliament,  get  them 
put  into  laws  and  the  other  statutes  repealed,  and  then 
it  will  be  short  work  to  know  the  law,  which  appears  a  very 
good  noble  thing." 

Parliaments  came  and  went,  however,  for  one  hundred 
and  sixty  years  after  Mr.  Prin's  discourse;  but  neither  he, 
nor  anyone  else,  succeeded  in  "abstracting"  the  laws  of 
England.  It  remained  for  Jeremy  Bentham  to  make  it 
the  mission  of  his  life  to  endeavor  to  bring  about  such 
legislation  that  it  might  be  "a  short  work  to  know  the  law, 
which  appears  a  very  good  noble  thing." 

Jeremy  Bentham  was  born  in  1748,  ten  years  before 
John  Adams  was  admitted  to  the  Bar;  he  graduated  at 
Oxford  in  1763,  two  years  after  James  Otis  argued  the 
Writs  of  Assistance.  He  wrote  his  Fragment  on  Govern- 
ment, a  Criticism  of  Blackstone,  in  1776,  the  year  of  Ameri- 
can Independence. 

In  1802,  one  year  after  John  Marshall  became  Chief  Jus- 
tice of  the  United  States  Supreme  Court,  he  published,  in 
Paris,  his  Legislation,  Civil  and  Criminal.     In  181 7,  the 


THE  ERA  OF   CODES,  1820-1860  515 

year  of  the  Dartmouth  College  Case,  appeared  his  Codifica- 
tion. His  great  work  on  Judicial  Evidence  appeared,  in 
Paris,  in  1823;  and,  in  England,  in  1825.  He  died 
in  1832,  three  years  before  the  death  of  Chief  Justice 
Marshall.^ 

His  cardinal  doctrine  was  thus  expressed  by  him:  "That 
which  we  have  need  of  is  a  body  of  law,  from  the  respec- 
tive parts  of  which  we  may  each  of  us,  by  reading  them 
or  hearing  them  read,  learn,  and  on  each  occasion  know, 
what  are  his  rights  and  his  duties."  The  code,  in  his  plan, 
was  to  make  every  man  his  own  lawyer. 

Of  Bentham's  influence  upon  this  history  of  the  law,  it 
has  been  said  that  it  is  difficult  to  speak  in  too  exaggerated 
terms.  His  bold  and  insistent  attacks  on  the  absurdities 
and  injustice  of  the  Common  Law  of  evidence  and  of  the 
English  system  of  criminal  law  were  the  fountain  head 
of  all  the  law  reform  of  the  Nineteenth  Century;  and 
various  legal  writers  have  said  of  him: 

"Bentham's  theories  upon  legal  subjects  have  had  a 
degree  of  practical  influence  upon  the  legislation  of  his  own 
and  various  other  countries  comparable  only  to  those  of 
Adam  Smith  and  his  successors  upon  commerce."  ^ 

*'He  it  was  who  made  first  the  mighty  step  of  tr^dng  the 
whole  provisions  of  our  jurisprudence  by  the  test  of  expedi- 
ency, fearlessly  examining  how  far  each  part  was  connected 
with  the  rest,  and  with  a  yet  more  undaunted  courage 
inquiring  how  for  even  its  most  consistent  and  symmetrical 
arrangements  were  framed  according  to  the  principles 
which  should  pervade  a  code  of  laws,  their  adaptation  to 

1  Bentham  and  his  Sclwol  of  Jurisprudence,  by  John  F.  Dillon,  Ohio  Bar 
Associalion  Proc,  Vol.  XI  (1890). 

Mirabeau,  by  T.  B.  Macaulay  (1832);  Bentham  and  the  Codifiers,  by 
Charles  M.  Gregory,  Harvard  Law  Rei>iew,  Vol.  XIII  (1899). 

2  History  of  Criminal  Law  of  England,  by  Sir  James  Fitz  James  Stephen, 
Vol.  II  (18S3). 


Si6  A  HISTORY  OF  THE  AMERICAN  BAR 

the  circumstances  of  society,  to  the  wants  of  men  and  to 
the  promotion  of  human  happiness."  ^ 

"I  do  not  know  a  single  law  reform  effected  since  Ben- 
tham's  day  which  cannot  be  traced  to  his  influence."  ^ 

"The  results  which  Bentham  produced,  and  the  changes 
in  the  law  which  he  effected,  however,  were  not  the  pro- 
duct of  his  direct  personal  efforts;  and,  in  fact,  he  did  not 
live  to  see  most  of  these  changes  brought  about.  But 
these  results  and  these  changes  were  the  work  of  more 
judicious  men,  over  whose  minds  Bentham  had  had  a 
controlling  power  and  influence."^ 

As  John  Stuart  Mill  said:  ^ 

"Bentham  is  one  of  the  great  seminal  minds  in  England 
of  his  age.  .  .  .  He  is  the  teacher  of  teachers.  ...  It  is 
by  the  influence  of  the  modes  of  thought  with  which  his 
writings  inoculated  a  considerable  number  of  thinking  men 
that  the  yoke  of  authority  has  been  broken,  and  innumer- 
able opinions,  formerly  received  on  tradition  as  incontestible, 
are  put  upon  their  defence.  Who,  before  Bentham,  dared 
to  speak  disrespectfully  in  express  terms  of  the  British 
Constitution  or  the  English  law?  Bentham  broke  the  spell. 
It  was  not  Bentham  by  his  own  writings;  it  was  Bentham 
through  the  minds  and  pens  which  those  writings  fed." 

Judge  John  F.  DiUon  repeats  the  story  that  the  remark 
having  been  made  to  Talleyrand:  "Of  ah  modern  writers, 
Bentham  is  the  one  from  whom  most  has  been  stolen  and 
stolen  without  acknowledgment."  —  "True,"  replied  Tal- 
leyrand, "e/  pille  de  tout  le  monde,  il  est  toujour s  riche.'' 

The  acknowledged  English  disciples  of  many  of  Ben- 
tham's  views  on  law  reform  were,  first  and  foremost  the 
great  lawyer  Sir  Samuel  Romilly,  John  Mill,  John  Stuart 

^  Lord  Brougham's  Speeches,  Vol.  II  (Black's  edition,  1838). 
2  Early  History  of  Institutions,  by  Sir  Henry  Maine. 

*  See  History  of  Law,  by  Emlin  McClain,  Reports  of  the  Congress  of 
Arts  a7td  Sciences,  Vol.  II  (1906). 

*  Essay  on  Bentham,  in  Dissertations  and  Discussions,  Vol.  I. 


THE  ERA  OF   CODES,  1820-1860  517 

Mill,  Henry  Bickersteth  (Lord  Langdale),  Henry  Brougham, 
and  Sir  James  Mackintosh. 

In  the  United  States  the  influence  of  Bentham  was  felt 
earlier  than  in  England,  through  the  works  of  Edward 
Livingston.  Livingston  had  left  New  York  in  1804,  to 
make  his  home  in  New  Orleans;  and  at  that  time  he  re- 
ceived, so  he  wrote  later  to  Bentham,  his  first  impulse  "to 
the  preparation  of  an  original  comprehensive  and  com- 
plete system  of  penal  legislation,"  from  the  great  work 
of  Bentham  on  Legislation  Civil  aitd  Criminal  which  had 
first  appeared  in  print  in  Paris,  in  1802. 

"The  perusal  of  your  works  first  gave  method  to  my 
ideas,  and  taught  me  to  consider  legislation  as  a  science, 
governed  by  certain  principles  applicable  to  all  in  different 
branches,  instead  of  an  occasional  exercise  of  its  powers, 
called  forth  only  on  particular  occasions,  without  relation 
to  or  connection  with  each  other.  .  .  .  Hereafter  no  one 
can,  in  criminal  jurisprudence,  propose  any  favorable 
change  that  you  have  not  recommended,  or  make  any 
wise  improvement  that  your  superior  sagacity  has  not 
suggested."  ^ 


^too^ 


As  a  result  of  this  impulse,  Livingston  drafted  a  Code  of 
Procedure  which  became  the  first  real  code  in  America, 
being  adopted  by  the  Legislature  of  Louisiana  in  1805,  in 
an  act  of  20  sections  of  about  25  printed  pages. 

In  1820,  Livingston,  at  the  request  of  the  Louisiana 
Legislature,  began  to  prepare  a  complete  Code  of  Crimes 
and  Punishments,  Criminal  Procedure,  Evidence,  and 
Prison  Discipline.  He  made  a  report  to  Louisiana,  in  1822; 
and  the  entire  work  was  finished  in  1824,  although  not 
printed  in  full  until  1833.^ 

1  See  Life  of  Edward  Livingston,  by  Charles  H.  Hunt  (1864).  Edward 
Livingston  and  the  Louisiana  Codes,  in  Columbia  Law  Review,  Vol.  II. 

*  Part  of  the  work  was  published  in  England  in  1824,  and  in  France  in 
1825. 


Si8  A  HISTORY  OF  THE  AMERICAN  BAR 

Although  never  enacted  into  law  as  a  complete  whole, 
it  proved,  as  George  Bancroft  said,  "an  unfailing  fountain 
of  reforms;"  ■■  and  Chancellor  Kent  declared  that  Living- 
ston had  "done  more  in  giving  precision,  specification, 
accuracy,  and  moderation  to  the  system  of  crimes  and  pun- 
ishments than  any  other  legislator  of  the  age;"  while 
Bentham  himself  urged  Parliament  to  print  the  whole 
work  for  the  use  of  the  English  Nation.^ 

Meanwhile  Bentham  had  been  turning  his  attention 
towards  the  United  States  as  affording  a  more  promising 
field  for  his  efforts  than  England,  where  the  conservative 
Bar  was  ahnost  completely  dominated  by  the  rigid  views 
of  Lord  Eldon. 

Between  iSii  and  1817  he  addressed  a  series  of  letters 
to  President  Madison,  to  the  various  State  Governors, 
and  to  the  "Citizens  of  the  several  American  United 
States,"  offering  to  construct  a  complete  code  for  the 
United  States,^  and  advising  them  "to  shut  our  ports 
against  the  Common  Law,  as  we  would  against  the 
plague." 

Among  those  who  fell  under  his  influence  was  a  brilliant 
Irish  lawyer  of  New  York,  William  Sampson,  who  began, 

1  A  review  of  Livingston's  Penal  Code  of  Louisiana,  by  Caleb  Gushing, 
in  Norik  Amer.  Review,  Vol.  XVII  (1823),  said,  "Mr.  Livingston's  code  wiU 
sensibly  contribute,  we  doubt  not,  to  the  diffusion  of  an  unexceptionally 
liberal  system  of  criminal  law  throughout  the  United  States." 

2  See  on  the  whole  subject,  an  interesting  note  in  Lecture  XII  of  Laws 
and  Jurisprudence  of  England  and  America,  by  John  F.  Dillon. 

See  also  Livingston's  Penal  Codes,  Amer.  Jurist,  Vol.  XVIII,  Vol.  XXII. 

»  Letters  of  Jeremy  Bentham  an  Englishman  to  the  Citizens  of  the  several 
American  United  States  on  the  Codification  of  the  Law,  in  Bentham' s  Works, 
Vol.  IV. 

President  Madison  in  declining  Bentham's  proposals,  in  1816,  wrote 
these  prophetic  words:  "  Although  we  cannot  avail  ourselves  of  them  in 
the  mode  best  in  itself,  I  do  not  overlook  the  prospect  that  the  fruits  of 
your  labor  may  in  some  other,  not  be  lost  to  us." 


THE  ERi\  OF  CODES,  i82t^iS6o  519 

in  1823,  a  fiety  and  radical  series  of  addresses  and  letters  in 
denunciation  of  the  English  Common  Law.^ 

These  publications  aroused  a  widespread  discussion  of 
the  subject  throughout  the  United  States.  Many  promi- 
nent jurists,  notably  Judge  Thomas  Cooper,  President  of 
Columbia  College,  South  Carolina,  agreed  with  Sampson's 
strictures  on  the  Common  Law;  and  the  question  of  codi- 
fication was  actively  and  fiercely  debated  during  the  years 
1820  to  1830.  Nothing  shows  the  extent  to  which  the  sub- 
ject occupied  men's  minds  better  than  the  number  of 
references  to  codification,  in  magazine  articles  ostensibly 
written  on  other  subjects.  The  Bar  was  sharply  divided 
on  the  subject,  and  the  attitude  of  both  factions  may  be 
seen  from  a  few  quotations  from  the  reviews  of  the  day. 
Thus  in  18 18,  Theron  Metcalf  (later  Reporter  and  Judge 
of  the  Massachusetts  Supreme  Court)  said  in  the  North 
American  Review:  ^ 

"About  thirty  years  ago,  the  Russian  code  of  laws  was 
reprinted  in  this  country  in  the  compass  of  a  common 
spelling  book.  Many  visionary  men  at  that  time  exclaimed 
with  wonder  at  the  comparatively  massy  bulk  of  our  own 
statutes,  and  seriously  talked  of  simplifying  our  jurispru- 
dence and  reducing  all  our  laws  into  a  narrow,  elementary 
compend.  Reformers  sprang  up  lilce  locusts,  in  the  time 
of  Shays'  Insurrection  and  our  statute  book  now  bears 
witness  to  their  folly.  These  crude  notions  had  their  day 
and  disappeared.  ...  But  the  fog  in  which  the  boastful 
reformers  of  Shays'  time  were  bewildered  has  recently 
confused  the  vision  of  less  factious  malcontents." 

In  the  same  year,  Daniel  Webster,  in  a  review  of  the 
third  volume  of  Wheatofi's  Reports,  said:  ^ 

1  See  Sampson's  Discourse  on  the  Origin,  Antiqtiilies,  Curiosities  and 
Nature  of  the  Common  Law;  and  Correspondence  with  various  learned  Jurists 
upon  the  History  of  the  Law,  by  Pishey  Thompson  (1S26). 

2  See  North  American  Review,  Vol.  VII  (July,  1818). 

'  See  North  American  Rcvirw,  Vol.  VIII  (December,  1818). 


S20  A  HISTORY  OF  THE  A^IERICAN  BAR 

"Those  who  have  embraced  the  notion  of  the  practica- 
bility and  utiHty  of  a  written  code  of  laws  extending  to 
all  possible  cases  which  arise  in  the  intercourse  of  men, 
and  who  look  upon  the  influence  of  the  unw^ritten  or  Com- 
mon Law  as  our  oppressive  domination,  will  naturally 
lament  the  appearance  of  ever}''  new  volume  of  reports 
of  legal  decisions.  To  them,  it  can  only  seem  another  rivet 
to  their  fetters.  .  .  .  We  do  not  belong,  however,  to  this 
fraternity.  .  .  .  Feeling  no  disposition  to  estimate  Hghtly 
the  usefulness  of  legislation,  it  yet  appears  to  us  to  be 
among  the  idlest  of  and  weakest  theories  of  the  age  that 
it  is  possible  to  provide  beforehand  by  positive  enactment 
and  in  such  manner  as  to  avoid  doubts  and  ambiguities  for 
all  questions  to  which  the  imm^ense  variety  of  human  con- 
cerns give  rise.  An  opinion  of  this  sort  becomes  so  impor- 
tant as  to  deserve  refutation,  only  in  consequence  of  the 
apparent  gravity  with  which  some  distinguished  men  in  the 
learned  world  have  treated  it." 

Quite  different  views  from  the  above  were  held  by  many 
lawyers  who  viewed  with  alarm  the  increase  of  the  number 
of  law  reports,  and  who  were  profoundly  impressed  with 
the  success  of  the  Code  Napoleon.  To  the  lawyer  of  today, 
who  finds  that  the  law  reports  issued  in  the  United  States 
number  about  eight  thousand  five  hundred,  the  fear  of 
the  paltry  two  hundred  in  existence  in  1825  seems  ridicu- 
lous; but  the  lawyers  of  those  days  felt  otherwise.  Thus 
Joseph  Story  in  his  Address  to  the  Sufolk  Bar,  in  1821,  said: 

"The  mass  of  the  law  is,  to  be  sure,  accumulating  with 
an  almost  incredible  rapidity.  ...  It  is  impossible  to  look 
without  some  discouragement  upon  the  ponderous  volumes 
which  the  next  half  century  will  add  to  the  groaning  shelves 
of  our  jurists." 

Da\dd  Hoffman,  a  Professor  of  Law  in  Maryland,  wrote 
in  his  Syllabus,  in  1821: 

"The  American  books  of  reports  (from  1789  to  1804) 
did  not  exceed  8  volumes,  whereas  they  amount  at  this 


THE  ER.\  OF  CODES,  1820-1860  521 

time  to  about  170!  .  .  .  The  last  ten  years  have  been 
prolific  of  law  works  beyond  former  example.  .  .  .  Scarcely 
a  week  passed  in  England  without  ushering  to  hght  a  new 
treatise  of  law.  The  reports,  too,  are  becoming  alarmingly 
numerous." 

Caleb  Gushing  (later  Judge  of  the  Massachusetts  Su- 
preme Court,  and  Attorney-General  of  the  United  States) 
wrote  in  1824:  ^ 

"  The  vast  and  increasing  multipHcation  of  reports  as 
well  as  law  treatises  is  a  very  remarkable  fact  in  our  legal 
history.  .  .  .  This,  we  are  aware,  has  been  a  standing 
subject  of  complaint  these  many  years.  .  .  .  Previous 
to  the  year  1804,  but  eight  volumes  of  indigenous  reported 
cases  had  been  printed  in  America,  and  the  lapse  of  only 
one-fifth  of  a  century  has  added  to  the  number  190  volumes 
exclusive  of  many  valuable  reports  of  single  cases,  .  .  . 
Whither  is  this  rapid  increase  of  reports  to  lead  us?" 

Willard  Phillips,  a  prominent  la\\yer  of  Boston,  wrote, 
in  1825:- 

"The  men  of  the  law  seem  to  have  suffered  under  more 
than  their  just  share  of  this  general  and  ancient  calamity 
if  we  may  believe  their  lamentations  over  the  ration  of 
their  number  of  books  to  that  of  their  chents.  On  this 
ground,  we  hear  loud  calls  from  many  quarters  for  codes 
and  abridgments." 

P.  S.  DuPonceau  in  his  address  to  the  Law  Academy,  in 
Philadelphia,  February  21,  182 1,  referred  to 

''The  unmense  increase  of  bulky  reports  which  has 
lately  taken  place  and  will  at  last  drive  the  student  in 
despair  to  compilation  and  the  works  of  private  jurists 

1  See  North  American  Rcvieiv,  Vol.  XVIII  (1824). 

2  Review  of  Pickering's  Reports,  Vol.  I,  by  Willard  Phillips  —  A'or/A 
Amer.  Rev.,  Vol.  XX  (1825);  and  in  a  Review  of  Greenleafs  Cases,  by  G. 
McWen  — North  Air.er.  Ret:,  Vol.  XXII  (1826),  it  is  said:  "Our  age  is  not 
peculiar  in  its  complaint  of  the  increase  of  law  books." 


522  A  HISTORY  OF  THE  AMERICAN  BAR 

and  thus  will  most  probably  be  subverted  the  ancient  basis 
of  the  jurisprudence  of  England." 

James  Kent  wrote  in  volume  four  of  his  Commentaries 
that  ''the  multiplication  of  books  is  becoming,  or  rather 
has  become,  an  evil  that  is  intolerable." 

Henry  D.  Sedgwick,  an  eminent  lawyer  of  New  York,  one 
of  the  strongest  adherents  of  codification,  wrote  in  1824:  ^ 

"We  would  then  suggest  the  propriety  that  at  least 
some  of  the  larger  and  more  wealthy  States  of  the  Union 
should  cause  their  laws  to  pass  under  general  revision  and 
to  be  formed  into  written  codes.  .  .  .  The  multiplication 
of  reports,  emanating  from  the  numerous  collateral  sources 
of  jurisdiction,  is  becoming  an  evil  alarming  and  impossible 
long  to  be  borne.  It  has  of  late  increased  enormously, 
in  every  mode  of  increase;  the  establishment  of  new  tri- 
bunals; the  increased  habit  of  reporting;  and  the  prolix 
methods  adopted  by  the  reporters." 

And  again  in  1825: 

"Your  old-fashioned  folks  in  Boston  are  all  out  in  think- 
ing that  codification  will  not  take.  Is  not  this  the  great 
State  and  Mr.  Clinton  its  great  man  and  will  not  our  Legis- 
lature follow  his  lead?  This  is  going  Hke  most  other  great 
improvements  —  the  craft  generally  opposed;  few  lawyers 
now  living  above  forty  will  assent  to  it.  Scarcely  any 
below  twenty-five  will  oppose  it.  The  cause  cannot  be 
in  better  hands  than  those  of  Livingston  in  New  Orleans 
and  Duer  and  Butler  here." 

The  conflicting  views  on  codification  as  a  remedy  are 
well  seen  in  the  following  letters  to  Jared  Sparks,  then  an 
editor  of  the  North  American  Review.  George  Ticknor 
wrote,  January  31,  1825: 

"I  pray  you,  however,  to  beware  of  an  article  in  favor 
of  general  codification.    Mr.  Jefferson,  Mr.  Madison,  Mr. 

^  Review  of  Sampson's  Discourse,  by  H.  D.  Sedgwick,  North  Amer.  Rev., 

Vol.  xrx. 


THE  ERA  OF  CODES,  1820-1860  523 

Webster,  Mr.  Hopkinson,  Mr.  Binney  and  not  only  all 
the  old  fellows  but  —  all  the  little  dogs  will  be  after  you 
at  once.  .  .  .  What  are  you  going  to  say  about  the  Code 
Napoleon  ?  Mr.  DuPonceau  says  if  you  defend  that  and 
come  out  for  codification  he  shall  give  you  up.  All  this 
shows  how  much  influence  you  have." 

In  1825,  Edward  Everett  wrote:  ^ 

"The  word  '  codification '  has  grown  into  use,  we  believe 
has  been  coined,  within  a  few  years,  in  the  progress  of  the 
lucubrations  of  an  individual,  whose  reputation  and  char- 
acter we  consider  too  enigmatical  to  be  rashly  pronounced 
upon.    We  mean  of  course  Mr.  Bentham. 

"When  the  question  is  stated,  it  is  plain  that  it  is  a  ques- 
tion not  as  to  the  expediency  of  codifying,  but  as  to  the 
mode  of  doing  it,  and  the  probability  that  it  would  be  done 
for  us  by  a  visionary  foreign  philosopher  as  much  distin- 
guished, at  least,  for  his  zeal  in  party  politics  as  for  his 
learning  in  jurisprudence.  ... 

"  It  is  sometimes  intimated  that  the  friends  of  codification 
expect  to  destroy  Utigation  by  making  the  law  on  all  points 
so  clear  that  no  question  could  arise.  —  If  this  were  the 
proposed  and  expected  advantage  to  result  from  codification 
it  would  certainly  be  a  work  to  be  left  to  the  jurists  of 
Laputa." 

Joseph  Story  wrote  to  Everett,  January  4,  1825: 

"I  do  not  believe  quite  so  much  in  the  infallibility  of 
the  Common  Law  as  my  brethren;  and  notwithstanding 
all  that  is  said  to  the  contrary,  I  am  a  decided  friend  to 
codification,  so  as  to  fix  in  a  text  the  law  as  it  is,  and  ought 
to  be,  as  far  as  it  has  gone,  and  leave  new  cases  to  furnish 
new  doctrines  as  they  arise,  and  reduce  these  again,  at 
distant  intervals,  into  the  text." 

Meanwhile  the  State  of  New  York  had  taken  the  first 
step  towards  codification,  in  the  Umited  sense  of  the  term  — 

»  Review  of  The  Code  Napoleon,  by  E.  Everett  —  A'oWA  Amer.  Rev.,  Vol. 
XX  (1S25). 


524  A  raSTORY  OF  THE  AjMERICAN  BAR 

the  re\dsion  of  the  statutes,  taken  in  connection  with  the 
cases  decided  in  the  courts  on  the  subjects  involved. 

The  first  revision  of  the  statutes  in  New  York  had  oc- 
curred in  1683;  her  Colonial  laws  were  first  collected  and 
pubhshed  iniyio;  in  1762,  the  Colonial  laws  then  in  force 
were  "collected,  revised  and  published  under  the  au- 
thority of  the  General  Assembly"  by  WilHam  Smith,  Jr., 
and  William  Livingston;  and  another  authoritative  re- 
vision took  place  in  1774.  The  first  collection  and  revision 
of  the  laws  of  the  State  of  New  York  was  published  in 
1789  by  Samuel  Jones  and  Richard  Varick;  and  another 
revision  was  made  by  direction  of  the  Legislature  in  1801, 
when  Chief  Justice  James  Kent  and  Judge  Jacob  RadcUff 
of  the  Supreme  Court  were  appointed  to  publish  the  laws 
then  in  force.  In  18 13,  similar  authority  was  given  to 
William  P.  Van  Ness  and  John  Wood  worth.  On  the  adop- 
tion of  the  new  State  Constitution,  in  1824,  Erastus  Root, 
James  Kent  and  Benjamin  F.  Butler  were  appointed  Com- 
missioners to  revise  the  laws.  The  first  two  resigning, 
Henry  Wheaton  and  John  Duer  took  their  places;  and 
later  John  C.  Spencer  was  appointed  in  Wheaton's  place. 
This  Commission  made  its  report,  March  14,  1826,  present- 
ing a  bill,  containing  a  radical  and  sweeping  reformation 
of  the  law  in  many  of  its  features  —  a  bill  which  may  prop- 
erly be  termed  the  first  modern  American  code. 

In.  their  report,  the  Commissioners  said: 

"The  practicabiHty  and  advantages  of  reducing  the 
cormnon  law  of  England  to  a  written  code  have  recently 
been  maintained  in  that  country  by  several  able  writers. 
In  this  country  also  similar  opinions  have  been  advanced 
by  some  of  our  ablest  jurists;  and  we  think  those  opinions 
are  gradually  gaining  ground  in  both  countries.  On  the 
other  hand,  a  majority  of  the  legal  profession  in  each  is 
adverse  to  the  schemes." 


THE  ERA  OF  CODES,  1820-1860  525 

This  report  was  referred  to  by  William  H.  Gardiner,  a 
Massachusetts  lawyer,  in  the  North  American  Review 
(Vol.  XXIV),  in  1827,  as  follows:  ^ 

"There  are  few  questions  of  internal  improvement  upon 
which  sound  and  liberal  minds  are  more  divided  among 
us  than  upon  the  expediency  and  practicability  of  sub- 
stituting a  general  code  for  the  whole  mass  of  common 
and  statute  law.  .  .  .  The  sense  of  the  profession  in  this 
country,  we  think,  is  against  this  great  scheme  of  legal 
reform.  .  .  .  But  learned  and  eminent  counsellors  are 
ranged  on  both  sides  of  the  controversy.  .  .  . 

*'We  believe  the  final  completion  of  this  great  work 
will  constitute  a  new  era  of  legislation  in  New  York,  the 
benefits  of  which  will  be  experienced  ere  long  by  the  neces- 
sary force  of  example  in  her  sister  States." 

In  1828,  the  State  of  New  York  enacted  this  remark- 
able statute,  which  entirely  reconstructed  the  law  of  real 
property;  and  as  has  been  said: 

"  It  struck  at  the  vital  part  of  the  huge  fabric  that  the 
English  real  property  law}^ers  and  judges  had  been  building 
for  three  centuries,  until  the  whole  toppled  and  fell.  Even 
Chancellor  Kent,  himself  a  reformer,  stood  aghast  at  the 
extent  of  the  demolition.  They  remodelled  the  law  of 
descent,  simplified  the  creation  and  division  of  estates  .  .  . 
remodelled  real  actions,  abolishing  fictitious  suits,  changed 
the  whole  law  of  perpetuities  and  limitations  and  wills,  .  .  . 
reconstructed  the  entire  law  of  executor  and  administrator, 
simplified  uses  and  trusts."  - 

This  work,  while  not  a  true  code,  was,  nevertheless,  a 
great  step  in  advance  towards  a  scientific  statement  of  the 
law;  and  it  became  the  foundation  and  model  for  most 
of  the  revised  and  collected  statutes  adopted  in  other 
States  in  later  years,  especially  for  the   Revised  Statutes 

'  See  also  Projected  Revision  of  the  Laws  0}  New  York,  by  Caleb  Gushing, 
North  American  Rev.,  Vol.  XXI  (1825). 

*  The  Common  Law,  by  Charles  P.  Daly  (1896). 


526  A  HISTORY  OF  THE  AMERICAN  BAR 

of   Massachusetts   of    1836    (which,    however,    contained 
many  improvements  over  its  model) . 

About  this  same  time,  Henry  Brougham  moved  in  the 
House  of  Commons  in  England,  in  1828,  for  a  Commission, 
"  to  inquire  into  the  defects,  occasioned  by  time  and  other- 
wise in  the  laws  of  the  realm,  and  into  the  means  necessary 
for  reducing  the  same."  That  the  United  States,  however, 
was  far  in  advance  of  England  in  the  state  of  its  law  was 
noticed  in  a  review  of  Brougham's  speech,  in  the  American 
Jurist,  in  1829  (Vol.  I) : 

"No  American  can  read  this  work  without  being  sur- 
prised to  find  how  many  of  the  e\dls  of  which  it  complains 
have  been  remedied  in  this  country.  .  .  .  The  greatest 
change  in  this  country  outside  of  real  property  and  criminal 
law  are  in  the  machinery  of  justice,  rules  of  pleading  and 
evidence  and  modes  of  trial." 

Many  other  English  legal  writers  were  agitating  for  re- 
form in  the  legal  system  of  England.^ 

Parliament  accordingly  appointed  a  series  of  Commis- 
sions to  inquire  into  the  law  of  procedure  and  other  sub- 
jects; and  a  report  in  1831  on  Common  Law  practise  and 

1  See  Observations  on  the  Actual  State  of  the  English  Law  of  Real  Property 
with  outlines  for  systematic  reform,  by  James  Humphreys  (2d  ed.,  1827); 
Contre  projet  to  the  Humphreysian  code,  by  Prof.  J.  J.  Park  (1828). 

A  letter  to  James  Humphreys  on  his  proposal  to  repeal  the  laws  of  real  prop- 
erty and  substitute  a  new  code,  by  E.  Sugden  (3d  ed.,  1827). 

Tracts  by  Hayes,  Beaumont,  Long,  Dixon,  Christie,  Barnes,  Swinburne, 
Boileau,  Jacob  Phillips;  attacks  on  the  Chancery  Courts  in  Edinburgh  Review; 
A  Brief  Account  of  some  of  the  Important  Proceedings  in  Parliament  on  the 
Court  of  Chancery,  by  C.  P.  Cooper  (1828);  A  letter  to  the  Lord  Chancellor  of 
Great  Britain  on  the  expediency  of  a  new  civil  code  for  England,  by  John 
Reddie  (1828). 

A  Letter  to  the  Lord  Chancellor  on  the  practicability  of  forming  a  code  of  the 
laws  of  England,  by  Crofton  Uniacke  (1827). 

Juridical  Letters  by  "Eunomus"  (Prof.  J.  J.  Park)  (1830). 

And  see  especially  Amer.  Jurist,  Vol.  VII  (July,  1832). 


THE  ERA  OF   CODES,  i82c^i86o  527 

procedure  led  to  the  adoption  of  certain  moderate  reforms 
known  as  the  New  Rules  of  the  Hilary  Term  of  1SJ4. 

This  movement  in  England  and  the  successful  passage 
of  the  New  York  act  spurred  the  opponents  of  codification 
in  the  United  States  to  renewed  efforts;  and  they  singled 
out  Bentham  himself  for  vigorous  attack.  Thus,  George 
Bancroft,  writing  in  the  American  Quarterly  Review  in  1827, 
said :  ^ 

"The  success  of  the  Napoleon  Code  has  set  all  Europe 
codifying.  In  Italy,  Germany,  Russia,  Switzerland  and 
the  Netherlands,  the  code  makers  are  at  work.  .  .  .  Eng- 
land has  caught  the  rabies,  and  her  writers,  at  the  head 
of  whom  is  the  celebrated  Jeremy  Bentham,  are  exercising 
their  pens  on  the  subject  of  this  mode  of  legislation  — 
God  preserve  us  from  the  extreme  remedy  of  general 
codification!" 

Anthony  Laussat,  a  Philadelphia  lawyer,  wrote  in 
1829:2 

"IMr.  Jeremy  Bentham,  wnth  the  usual  adventurousness 
of  those  who  have  no  practical  knowledge  of  their  subject 
was  the  first  to  broach  the  subject  of  reform  ...  a  com- 
plete re\"ision  of  the  Common  Law.  The  speculations  of 
Mr.  Bentham  on  the  subject  are  such  as  might  be  expected 
from  a  closet  philosopher;  and  though  certainly  beautiful 
in  theory  are  about  as  fit  to  be  applied  to  the  practical 
operations  of  the  law  as  some  of  his  political  schemes  are 
to  the  actual  government  of  mankind." 

Mr.  Laussat  recognized,  nevertheless,  that,  both  in  Eng- 
land and  in  the  United  States,  there  was  a  real  demand  for 
reform  in  legal  conditions: 

"It  is  evident  to  all  those  who  have  diligently  watched 
the  signs  and  motions  of  the  times,  that  a  great  era  is  now 

1  Re\new  of  Kent's  Commentaries,  by  George  Bancroft,  Amer.  Quarterly 
Revirw,  Vol.  I  (1827). 

*  Codification,  by  A.  Laussat,  Amer.  Quarterly  Rev.,  Vol.  \'I  (1829). 


52S  A  HISTORY  OF  THE  AMERICAN  BAR 

approaching  in  jurisprudence.  There  is  a  spirit  abroad 
wliich  never  can  be  appeased  until  the  sacrifice  is  consum- 
mated of  everything  that  is  pernicious.  Its  progress  in 
England  may  be  marked  not  only  in  the  writings  of  jurists 
and  speeches  of  legislators  but  in  the  deep  agitation  per- 
vading all  classes  from  the  meanest  suitor  to  the  chancellor 
on  his  woolsack.  Their  eyes  are  now  turned  to  the  legal 
profession  of  this  country  as  those  who  were  the  first 
to  advance  into  the  great  field  of  philosophic  juris- 
prudence." 

Two  years  after  the  New  York  revision  of  the  statutes, 
Pennsylvania  took  up  the  subject;  and  a  Commission, 
composed  of  WilHam  Rawle,  Thomas  J.  Wharton  and  Joel 
Jones,  was  appointed  to  revise  the  civil  code,  under  a 
resolve  of  March  23,  1830.  This  Commission  made 
its  first  report,  January  31,  1832,  recommending  many 
revisions  of  the  statutes,  and  stating  that  no  revision 
had  taken  place  since  1700;  five  other  reports  were 
made,  1832-1835,  and  the  statutes  enacted  between  1834 
and  1836,  based  on  these  reports,  formed  its  Revised 
Code} 

The  next  State,  after  Pennsylvania,  to  take  the  step 
towards  codification  in  its  limited  sense,  viz.,  the  complete 
revision  of  its  statutes  in  connection  with  the  decided 
cases,  was  Massachusetts.  Previous  compilations  of  the 
statutes  had  already  been  made  in  that  State  —  in  1800 
by  a  Committee  composed  of  Nathan  Dane,  George  R. 
Minot  and  John  Davis;  in  181 2  (the  Colonial  and  Pro- 
vincial Laws)  by  a  Commission  composed  of  such  brilliant 
lawyers  as  Nathan  Dane,  William  Prescott  and  Joseph 
Story;  in  1823,  by  Asahel  Stearns  (then  Professor  in  the 
Harvard  Law   School),   and    Lemuel    Shaw   (later   Chief 

*  See  Revised  Code  of  Pennsylvania  —  Anier.  Quarterly  Review,  Vol. 
XIII  (March,  1S33),  and  Vol.  XIX  (June,  1836);  Amer.  Jurist,  Vol.  XIII 
(183s). 


THE  ERA  OF  CODES,  1820-1860  529 

Justice) ;  ^  but  as  most  of  the  lawyers  in  the  State  were 
opposed  to  codiiication,^  no  further  action  was  taken  until 
1832.  In  that  year  by  resolve  of  the  Legislature,  Asabel 
Stearns,  John  Hooker  Ashmun  (succeeded  by  John  Picker- 
ing in  1833)  ^^d  Charles  Jackson  were  appointed  a  com- 
mission to  codify  existing  statutes.^ 

This  Commission  made  a  report  in  1834,  and  on  No- 
vember 4,  1835,  the  Revised  Statutes  of  Massachusetts  were 
enacted,  to  take  effect  April  i,  1836.  "They  have  ever 
since  served  as  the  model  on  which  many  similar  works 
have  been  formed  in  other  States,"  said  the  Law  Reporter, 
in  1859  (Vol.  XXI);  another  and  contemporary  view  of 
this  important  statutory  work  is  to  be  seen  in  a  review  in 
the  American  Jurist,  in  1835  (Vol.  XIII): 

"New  York  has  the  distinction  of  taking  the  lead  in 
codification  in  the  United  States.  It  is  a  glorious  pre- 
eminence. And  the  men  who  propelled  that  State  forward 
to  the  attempt  deserve  on  this  ground  alone,  a  high  place 
in  history.  ...  A  few  years  ago,  codification  had  a  direful 
import  to  the  conservative  party  in  jurisprudence;  and 
not  wholly  without  reason;    since  some  of  its  early  cham- 

*  See  Review  of  The  General  Laws  of  Massachusetts,  by  A.  Stearns  and 
L.  Shaw,  by  Caleb  Gushing,  North  Amer.  Rev.,  \'ol.  XVII  (1823).  "The 
necessity  of  a  new  revised  edition  of  our  statutes  has  been  very  sensibly 
felt." 

2  Theron  Metcalf,  in  a  Review  of  GreenleaJ's  Reports  in  North  Amer.  Rev., 
Vol.  XV  (1822),  said:  "It  has  been  thought  that  certainty  in  statute  law 
might  be  promoted  by  reducing  all  that  has  been  enacted  upon  one  subject, 
though  at  distant  interx^als,  into  one  chapter.  We  trust  the  ill  success  of 
such  attempts  will  prevent  their  repetition.  The  present  Probate  Law  of 
Massachusetts  is  a  standing  monitorj'  memento  on  this  subject. 

*  See  Rccision  of  the  Laws  of  Massachusetts  —  Amer.  Jurist,  Vol.  XIII; 
Codification  of  the  Common  Law  in  Massachusetts,  Amer.  Jurist,  Vol.  XV; 
see  also  articles  on  codification  and  law  reform,  A7)ier.  Jurist,  Vol.  MI, 
p.  226,  note;  Written  and  Unwritten  Systems  of  Law,  Amer.  Jurist,  Vol.  V, 
Vol.  IX;  Legal  Reform,  Vol.  IX;  Codification  and  Reform  of  tlie  Law,  Amer. 
Jurist,  Vols.  XIV,  XV,  X\'I,  XXI,  XXIII,  XXIV. 


530  A  HISTORY  OF  THE  AMERICAN  BAR 

pions  were  sturdy  radicals  in  legal  reform.  In  this  view 
codification  was  another  name  for  juridical  revolution.  .  .  . 
But  the  alarm  has  subdued.  .  .  .  The  substitution  of  the 
terms  revision  and  consohdation  of  statutes  for  that  of 
codification  has  contributed  in  no  small  degree  to  the 
change  of  thinking  on  the  subject.  .  .  .  Here,  the  plan  pur- 
sued has  been  to  incorporate  into  the  code  the  former  deci- 
sions on  the  construction  of  the  statutes  revised.  The 
formation  of  a  code  is  a  magnificent  enterprise  worthy  of  a 
State,  success  in  which  is  one  of  the  most  glorious  events 
in  the  annals  of  any  community,  however  brilliant  may  be 
its  history  in  other  respects.  Every  part  of  the  report 
teems  with  useful  improvements;  and  its  completion  and 
adoption,  in  the  spirit  in  which  the  court  has  been  thus 
far  conducted,  in  the  able  hands  to  which  it  has  been 
committed  will  make  a  great  epoch  in  the  jurisprudence  of 
the  State." 

In  1836,  Massachusetts  at  the  initiative  of  Governor 
Edv/ard  Everett/  and  of  radical  Democrats  like  Robert 
Rantoul,  Jr.,  took  a  still  further  step  in  advance,  by 
appointing  Joseph  Story,  and  Simon  Greenleaf,  Theron 
IMetcalf,  Charles  E.  Forbes  and  Luther  S.  Gushing  as  a 
Commission,  "to  take  into  consideration  the  practicabihty 
and  expediency  of  reducing  in  a  written  and  systematic 
code  the  Common  Law  of  Massachusetts  or  any  part 
thereof." 

This  Commission  made  a  report  to  the  Legislature  in 
1837,  favoring  the  codification  of  that  part  of  the  law  re- 
lating to  civil  rights  and  duties  of  persons  in  relation  to 
other  persons,  rights  and  titles  to  real  and  personal  prop- 
erty, rights,  duties  and  claims  arising  from  acts  and  im- 
plied contracts  —  also  the  Common  Law  as  to  crimes  and 
evidence,  the  latter  as  the  first  object  for  the  deliberation 
of  the  Legislature  .2 


1  See  Message  to  Legislature,  January  15,  1836. 

2  See  American  Jurist,  Vol.  XVI  (1837). 


THE  ERA  OF  CODES,  1 820-1 860  531 

The  recommendations  of  this  report,  however,  were  not 
carried  out;  although,  in  1837,  a  Commission  composed 
of  Charles  Jackson,  Willard  Phillips,  John  Gray  Rogers, 
Luther  S.  Cushing  and  Samuel  B.  Walcott  was  appointed 
to  codify  the  law  of  crimes  —  James  C.  Alvord  later  taking 
Jackson's  place. 

This  Commission  reported  in  1839,  recommending  the 
subject  to  the  Legislature  for  careful  examination,  and 
submitting  a  sample  of  a  codification  of  the  law  of  murder.^ 
Nothing  further  was  done  by  the  Legislature. 

Meanwhile  in  Ohio,  Samuel  Portland  Chase,  the  future 
Chief  Justice  of  the  United  States,  then  a  youth  of  twenty- 
five,  had  completed,  in  1833-1834,  his  Revision  of  tlie 
Statutes  of  Ohio,  "a  work  of  great  magnitude,  which  gave 
him  an  immediate  and  solid  claim  to  distinction  and  at 
present  placed  him  in  the  foremost  rank  among  the  lawyers 
of  his  State  if  not  of  the  nation."  ^ 

In  1839,  David  Dudley  Field  of  New  York  began  his 
agitation  for  more  radical  code  reform.^ 

As  early  as  1842,  a  bill  was  submitted  in  the  New  York 
Legislature,  to  provide  more  simple  and  speedy  adminis- 
tration of  justice  in  civil  cases  in  courts  of  Common  Law; 

*  See  American  Jurist,  Vol.  XXI  (1839). 

*  See  Life  and  Public  Services  of  Samuel  Portland  Chase,  by  J.  W.  Shuck- 
ers  (1874). 

James  Kent  wrote  to  Chase,  July  i,  1835:  "Your  edition  of  the  statutes 
of  Ohio  is  a  great  work." 

Judge  Story  wrote  to  Chase,  March  i,  1834: 

"It  does  equal  honor  to  your  enterprise,  your  industry  and  your 
talents.  I  wish  with  all  my  heart  that  other  States  would  imitate  this 
example,  for  in  most  of  them  there  is  a  sad  neglect  of  the  old  repealed 
laws  ;  and  it  is  difficult  to  trace  out  the  history  and  progress  of  their 
legislation.  I  shall  feel  honored  by  the  privilege  of  having  a  copy  in  my 
library. 

See  also  Ohio  Legislation  in  Amer.  Jurist,  Vol.  XI  (January,  1834). 

'  David  Dudley  Field  and  His  Work,  in  New  York  Bar  Ass.  Proc,  Vol. 
XVIII. 


532  A  fflSTORY  OF  THE  AMERICAN  BAR 

another  bill  was  introduced,  for  courts  of  Equity;  and  a 
third,  to  sinipHfy  indictments.  These  were  forerunners  of, 
and  in  some  parts  identical  with,  the  radical  code  adopted 
six  years  later.^ 

In  1846,  a  wave  of  democracy  and  reform  was  sweeping 
over  the  world.  In  England,  it  took  shape  in  the  Chartist 
agitation;  and  in  Europe,  in  the  revolutions  which,  in  1848, 
convulsed  almost  every  country.^  In  the  United  States, 
the  jealousy  of  privilege  focused  itself  in  an  attack  on  the 
Bar  Associations,  the  lawyers  and  the  judges.  A  new  Con- 
stitution in  New  York,  adopted  after  a  political  convulsion, 
swept  away  all  the  old  existing  courts  and  judges,  estab- 
lished elective  judges  with  a  lunited  tenure,  and  provided 
that,  "any  male  citizen  of  twenty-one  years,  of  good  moral 
character,  and  who  possesses  the  requisite  qualifications 
of  learning  and  abihty  shall  be  entitled  to  admission  to 
practise  in  all  the  courts  of  the  State."  ^ 

It  further  provided  that  the  Legislature  should  appoint 
a  Commission,  "to  reduce  into  a  written  and  systematic 
code  the  whole  body  of  the  law  of  the  State  or  so  much  and 
such  parts  thereof  as  to  the  said  Commissioners  shall  seem 
practicable  and  expedient."  Under  this,  a  Commission 
composed  of  Da\'id  Dudley  Field,  WilHam  Curtis  Noyes 

^  Law  Reform  in  the  United  States  and  its  Influence  Abroad,  by  D.  D. 
Field,  in  Amer.  Law  Rev.,  Vol.  XXV  (1891). 

2  See  A  Century  of  Judge  Made  Law,  by  W.  B.  Homblower  in  Columbia 
Law  Review,  Vol.  VII  (1907). 

^  Of  this  new  constitution  Timothy  Walker  said  in  the  Western  Law 
Journal,  Vol  IV.  (May,  1847): 

"We  have  always  been  earnest  advocates  of  law  reform;  but  the  New 
York  experiment  goes  far  beyond  anything  we  had  dreamed  of.  It  is  in  fact 
a  revolution,  and  not  the  less  so  because  a  blooded  one.  We  hope  that 
the  people  of  that  State  will  never  see  cause  to  regret  what  they  have  done; 
but  we  predict  that,  before  many  years,  another  convention  will  be  called, 
to  reform  some  of  the  late  reform.  There  is  a  deep-seated  veneration  for  an- 
cient landmarks  which  can  ill  brook  to  see  them  all  swept  away  at  once." 


THE  ERA  OF  CODES,  1820-1860  533 

and  Alexander  Bradford  in  1857,  reported  in  1865  a 
Civil  Code,  containing  sweeping  changes  in  substantive 
law. 

This  was  the  first  real  code  in  the  broad  and  correct  sense 
of  the  term,  prepared  in  this  country.  The  opposition 
which  it  encountered  from  the  legal  profession,  however, 
was  too  strong,  and  it  failed  of  adoption  by  the  Legislature 
of  New  York.i 

But  in  spite  of  the  unsuccessful  culmination  of  the 
movement  for  this  radical  form  of  codification,  a  more 
limited  form,  —  the  reform  by  statute  of  the  old  systems 
of  pleading  and  practise  —  made  decided  progress  at  this 
time.  ^ 

For  two  hundred  years,  skill  in  special  pleading  had  been 
the  proudest  boast  of  the  Common  Law  lawyer.  In  no 
branch  of  the  science  had  the  great  leaders  of  the  American 
Bar  been  more  adept;  but  to  no  part  of  the  Common  Law 
had  there  been  more  valid  ground  for  objection,  or  more 
justifiable  cause  for  the  popular  prejudices.  The  early 
volumes  of  American  reports,  like  the  English  reports 
before  Mansfield's  time,  were  filled  with  cases  lost,  not  on 
their  merits,  but  on  technical  points  of  pleading.  There 
were  American  "Baron  Surrebutters,"  before  the  time  of 
the  English  Mr.  Justice  Parke,  who  took  their  greatest 
pleasure  in  deciding  a  case  on  a  defective  declaration  or  a 
mistaken  plea. 

»  Other  States  later  were  less  conservative;  and  in  1865,  this  Field 
Code,  prepared  for  New  York,  was  adopted  by  the  Territorv'  of  Dakota, 
and  in  a  modified  form  was  still  later  adopted  by  the  States  of  North  Dakota, 
South  Dakota,  Montana  and  Idaho.  In  1873,  California  adopted  the  New 
York  Code,  revised  and  amended. 

In  1858,  Georgia  appointed  a  Commission  to  prepare  a  code  to  embrace 
the  Common  as  well  as  the  statute  law  of  the  State;  and  in  i860,  that 
State  enacted  a  Revision  of  the  Statutes,  Part  II  of  which  was  entitled 
"The  Civil  Code  —  which  treats  of  rights,  wrongs  and  remedies,"  to  take 
effect  January  i,  1862. 


534  A  HISTORY  OF  THE  AMERICAN  BAR 

As  the  American  Jurist  said  in  1833: 

"Take  the  whole  number  of  reported  decisions,  both  in 
England  and  America  on  the  subject  of  contracts,  and  we 
venture  to  affirm  that  a  majority,  yes,  a  large  majority, 
have  gone  off  on  questions  of  form.  This  is  a  stupendous 
evil.  No  wonder  that  the  law  suffers  under  the  imputation 
of  uncertainty,  and  of  a  tendency  to  encourage  quibbling 
and  chicanery.  The  suitor  who  is  turned  out  of  court  on 
a  point  of  form,  when  he  knows  that  he  has  right  on  his 
side,  has  good  reason  to  consider  himself  oppressed.  .  .  .  No 
wonder  if  with  such  impressions,  he  imbibes  a  hatred  both 
of  the  law  and  its  ministers.^  On  the  other  hand,  while 
the  laymen  were  insistent  upon  a  decided  change  in  the 
methods  of  pleading,  the  Bar  still  retained  its  beUef  in 
special  pleading,  agreeing  with  Judge  Joseph  Story  in  his 
Address  to  the  Suffolk  Bar  when  he  said  that:  'Special 
pleading  contains  the  quintessence  of  the  law;  and  no 
man  ever  mastered  it  who  was  not  by  that  means  made  a 
profound  lawyer. 


J  jj 


The  leader  in  law  reform  in  this  direction  was  the  State 
of  Massachusetts  which  passed  a  statute  in  1836  (c.  273), 
dispensing  with  all  pleas  in  bar,  aboHshing  special  de- 
murrers, and  constituting  the  general  issue  as  the  only 
form  of  defense. 

As  with  the  other  reforms  in  the  law,  this  action  was 
passed  in  response  to  a  popular  demand,  and  in  face  of 
opposition  by  the  legal  profession. 

The  American  Jurist  (Vol.  XVI),  in  a  vigorous  attack 
upon  the  new  law,  said  in  1836,  that  legislative  action  had 
been  hurried  forward  without  careful  examination,  the  pro- 
fession not  being  asked  to  state  their  opinions  or  given 
opportunity  to  do  so,  and  the  courts  not  being  consulted: 

"Not  a  judge  on  the  bench,not  an  eminent  lawyer  in  whom 
the  public  are  in  the  habit  of  confiding  would  probably 

1  See  Legal  Reform —  Amer.  Jurist,  Vol.  EX. 


THE  ERA  OF   CODES,  182(^1860  535 

have  ad\ased  this  measure; "  —  and  it  complained  that  "  the 
use  of  no  other  form  of  defence  than  the  general  issue  tends 
to  produce  surprise,  uncertainty  and  want  of  exactness, 
thereby  defeating  the  ends  of  justice,  and  brings  before  the 
jury  mixed  questions  of  law  and  fact  without  ha\'ing  the 
law  settled  by  the  court,  except  in  the  necessarily  hurried 
mode  of  charging  at  nisi  prius." 

Twelve  years  after  this  Massachusetts  Act  of  1836,  came 
the  New  York  Code  of  Civil  Procedure,  adopted  pursuant 
to  the  New  York  Constitution  of  1846.  That  Constitu- 
tion, in  addition  to  a  provision  for  a  Commission  to  codify 
the  substantive  law,  had  further  pro\'ided  for  the  appoint- 
ment of  a  Commission  "to  revise,  reform,  simplify  and 
abridge  the  rules  of  practice,  pleadings,  forms  and  pro- 
ceedings of  this  State."  This  Commission  was  appointed  in 
April,  1847;  and  the  Legislature  instructed  it,  "to  provide 
for  abolition  of  the  present  forms  of  action  and  plead- 
ings in  cases  at  common  law;  for  a  uniform  course  of  pro- 
ceedings in  all  cases  whether  of  legal  or  equitable  cognizance, 
and  for  the  abandonment  of  all  Latin  and  other  foreign 
tongues  so  far  as  the  same  shall  by  them  be  deemed  prac- 
ticable, and  any  form  and  proceedings  not  necessary  to 
ascertain  and  preserve  the  rights  of  the  parties." 

The  Commission,  composed  of  David  Dudley  Field, 
David  Graham  and  Arphaxed  Loomis,  reported,  on  Feb- 
ruary 29,  1848,  a  Code  of  Civil  Procedure,  the  enactment 
of  which  by  the  Legislature,  April  12,  1848,  startled  the 
legal  profession  throughout  the  country.^ 

The  Law  Reporter,  severely  critical,  said  that  this  Code 

"was  undoubtedly  the  greatest  innovation  upon  the  Com- 
m.on  Law  which  was  ever  effected  by  a  single  statute.  In 
one  section  it  struck  out  of  existence  all  of  that  law  which 

'  The  New  York  System  of  Procedure,  by  Joseph  S.  .\uerbach  (1877). 
The  Uislorical  Develop^mcni  of  Code  Pleading,  by  Charles  jM.  Hepburn 
(1897). 


536  A  HISTORY  OF  THE  AMERICAN  BAR 

was  •  inconsistent  vdih  the  doctrines  of  equity,  and  in  an- 
other obliterated  the  whole  of  the  two  systems  of  pleading 
at  law  and  in  equity,  replacing  both  by  a  single  and  homo- 
geneous body  of  rules.  So  radical  a  change  amazed,  and  for 
a  while  confounded  the  entire  legal  profession.  They  were 
unprepared  for  it,  and  unwilling  to  beUeve  even  that  it  had 
been  accomplished.  .  .  . 

"The  early  reports  of  decisions  under  the  Code  testify 
abundantly  to  the  dire  confusion  which  it  created,  and 
the  bitter  opposition  which  it  met  among  both  judges  and 
la^vyers.  For  some  years  it  was  judicially  repealed  in  a 
large  part  of  the  State,  so  far  as  its  two  main  features,  before 
mentioned,  were  concerned."  ^ 

In  1849,  a  feeling  of  restlessness  again  prevailed  in  Massa- 
chusetts over  the  cumbrous  system  of  court  procedure, 
which  was  well  voiced  in  an  article  in  the  Law  Reporter, 
calling  for  the  abolition  of  all  diversities  of  civil  remedies, 
and  the  removal  of  the  absurd  Common  Law  bar  against 
interested  witnesses :  ^ 

'*A  movement  towards  a  radical  change  in  the  practice 
of  law  courts  in  a  neighboring  State  has  recently  startled 
the  Bar  of  New  England.  The  powerful  hand  of  progress 
has  been  seen  prying  under  the  pedestal  of  the  most  time 
honored  institution  of  law.  .  .  .  The  time  seems  to  us  to 
have  come  when  progress  ought  to  venture  within  the 
precincts  of  Bench  and  Bar.  ...  As  the  increasing  and 
concentrated  light  of  civilization  illuminates  the  various 
departments  of  legal  practice,  many  ancient  styles  of  at- 
taining equity,  sometimes  perverted  to  deception  and 
fraud,  often  to  injustice,  should  be  essentially  modified  or 
altogether  removed.  .  .  .  The  character  and  wants  of  the 
people  are  changing;  and  upon  this  character  and  wants 
the  modes  of  the  law,  as  well  as  the  law  itself  are  dependent. 
Some  years  since  in  obedience  to  this  necessity,  Massachu- 

1  See  Law  Reporter,  Vol.  XI  (1847);    Vol.  XIII  (1850);    Vol.  XVIII 
(1855);  Vol.  XXV  (1862). 

*  Law  Reform  Practice,  in  Law  Reporter,  Vol.  XII  (1849). 


THE  ERA  OF   CODES,  1820-1860  537 

setts  ordered  that  the  rules  of  special  pleading,  hoary  with 
antiquity,  should  no  longer  manacle  the  equities  of  judicial 
proceedings,  and  lay  upon  the  necks  of  innocent  clients 
the  penalties  for  the  faults  of  an  uneducated  attorney. 

"In  obedience  to  the  same  necessity,  they  have  suspended 
the  rule  of  incompetency  for  interest  from  witnesses  who 
may  be  members  of  political  corporations  and  of  incorpo- 
rated mutual  fire  and  marine  insurance  companies,  parties 
to  the  suit.  Yet  not  one  element  of  logic  is  found  to  dis- 
tinguish in  principle  between  incorporated  mutual  compan- 
ies and  incorporated  stock  companies.  And  we  may  add, 
between  them  and  copartnerships,  and  these  last  and 
individual  parties." 

A  Commission  was  appointed  in  1849  to  frame  a  new 
code  of  procedure,  composed  of  Reuben  A.  Chapman,  N. 
J.  Lord  and  Benjamin  R.  Curtis,  Chairman.  Their  report 
was  adopted  by  the  Legislature  in  185 1  —  the  same 
year  in  which  Curtis  was  made  judge  of  the  United 
States  Supreme  Court;  and  the  Law  Reporter  said  of  this 
action:  ^ 

"The  desire  for  legal  reform  has  now  become  so  strong 
among  all  classes  in  this  country  that  it  cannot  be  checked. 
It  is  idle  to  contend  against  it  especially  when  all  admit 
that  there  are  so  many  sound  reasons  which  warrant  such 
a  feeling.  It  therefore  eminently  becomes  the  profession 
to  allow  the  movement  to  go  on." 

By  this  Practise  Act  of  185 1  the  forms  of  action  were 
reduced    to    three,  —  tort,    contract   and    replevin;     pro- 

»  See  Law  Reporter,  Vol.  XIII  (1851). 

A  year  later  the  Common  Law  Procedure  Act  of  1852  went  into  efiFect  in 
England,  framed  by  a  Royal  Commission,  appointed  in  1850,  composed  of 
Sir  John  Jervis  (later  Chief  Justice  of  Common  Pleas),  Sir  Alexander  Cock- 
burn  Oatcr  Lord  Chief  Justice  of  England),  Sir  Samuel  Martin  (later  Baron 
of  Exchequer),  Sir  James  Willes  (Justice  of  Common  Pleas),  William  B ram- 
well  (later  Lord  BramwcU). 

See  English  Law  Reform  in  Law  Reporter,  Vol.  XVIII  (1855). 


538  A  HISTORY  OF  THE  AIMERICAN  BAR 

visions  were  made  for  the  verification  of  pleadings  by  oath 
or  afi5rmation  at  every  stage,  speedy  settlement  of  actions, 
and  the  right  of  both  parties  to  fill  interrogatories.  The 
bar  of  exclusion  of  witnesses  for  interest  or  infamy  was 
abolished. 

This  act,  which  was  largely  copied  by  Alabama  (1852), 
Maryland  (1856),  and  Tennessee  (1858),  was  opposed  for 
many  years  by  the  more  conservative  members  of  the  Bar;  ^ 
it  was  judicially  condemned  by  Chief  Justice  Shaw  in 
several  decisions;  and,  in  1859,  in  the  United  States  Su- 
preme Court,  Judge  Grier  said,  referring  to  these  statutes 
changing  Common  Law  procedure :  ^ 

"This  system  matured  by  the  wisdom  of  ages,  founded 
on  principles  of  truth  and  sound  reason,  has  been  ruthlessly 
abolished  in  many  of  our  States,  who  have  rashly  substituted 
in  its  place  the  suggestions  of  sciolists  who  invent  new 
codes  and  systems  of  pleadings  to  order.  .  .  .  The  result 
of  these  experiments,  so  far  as  they  have  come  to  our  knowl- 
edge, has  been  to  destroy  the  certainty  and  simplicity  of 
all  pleadings  and  introduce  on  the  record  an  endless  wrangle 
in  writing,  perplexing  to  the  court,  delaying  and  impeding 
the  administration  of  justice." 

The  reforms  introduced  in  the  Practise  Acts  of  New 
York  and  Massachusetts  have,  however,  amply  justified 

*  "The  simplification  attempted  by  the  Practice  Act  has  not  been  pro- 
ductive of  the  results  hoped.  On  the  whole  the  practice  has  become  looser 
but  not  really  easier.  It  is  not  a  fit  season  to  consider  whether  a  recurrence 
to  some  of  the  essential  features  of  the  system  of  special  pleading  is  not 
advisable,"  said  the  American  Law  Review,  Vol.  XI  (1876-1877). 

*  McFaul  V.  Ramsey,  20  Howard,  525. 

In  Farin  v.  Tesson,  1  Black,  315  (1861),  Judge  Grier  said: 
"It  is  no  wrong  or  hardship  to  suitors  who  come  to  the  courts  for  a  rem- 
edy, to  be  required  to  do  it  in  the  mode  established  by  the  law.  State  legisla- 
tures may  substitute  by  codes,  the  whims  of  sciolists  and  inventors  for  the 
experience  and  wisdom  of  the  ages;  but  the  success  of  these  experiments  is 
not  such  as  to  allure  the  court  to  follow  their  example." 


THE  ERA  OF  CODES,  182&-1860  539 

themselves  in  practical  working,  and  they  remain  to-day 
(191 1)  substantially  unchanged.^ 

'  Within  five  years  after  1848,  Civil  Procedure  Codes  based  on  that  of 
New  York  had  been  adopted  in  seven  States;  in  Missouri,  in  1849;  in  Cali- 
fornia, in  1850;  in  Iowa,  Kentucky  and  Minnesota,  in  1851;  in  Indiana,  in 
1852;    and  in  Ohio,  in  1853. 

Charles  M.  Hepburn  says  that  the  New  York  Code  has  been  enacted  in 
substance  and  often  in  letter  in  sixteen  other  States  and  Territories:  Oregon 
and  Washington,  in  1854;  Nebraska,  in  1855;  Wisconsin,  in  1856;  Kansas, 
in  1859;  Nevada,  in  1861;  Dakota,  in  1862;  Arizona  and  Idaho,  in  1864; 
Montana,  in  1865;  North  Carolina  and  Arkansas,  in  1868;  Wyoming,  in 
1869;  South  Carolina,  Florida  and  Utah,  in  1870. 

See  also  the  Colorado  Code  of  1877,  the  Connecticut  Practise  Act  of 
1879  and  the  Codes  of  Oklahoma  of  1890  and  1893. 


CHAPTER  XX 

AMERICAN  LAW  BOOKS,    1815-191O 

From  1815  until  1830,  when  the  fourth  volume  of  Kent's 
Commentaries  was  published,  American  legal  literature 
made  slight  advance.  A  review  of  Dane's  Abridgment  in 
the  American  Jurist  (Vol.  IV)  in  1830  described  condi- 
tions at  that  time  as  follows: 

"The  original  treatises  and  compilations,  as  well  as  the 
numerous  volumes  of  reports  of  domestic  production  that 
have  made  their  appearance  in  our  libraries  of  late  years 
are  evident  indications  of  our  juridical  progress;  but  our 
ready  access  to  England  for  laws  adapted  to  our  institu- 
tions and  habits,  while  it  was  a  great  advantage,  was  at 
the  same  time  a  weighty  discouragement  to  the  under- 
taking of  any  original  works.  ...  At  length  we  began 
to  make  compilations  of  precedents  and  forms,  and,  after 
a  time  here  and  there  a  bold  spirit  would  venture  upon 
something  in  the  shape  of  a  treatise;  but  still  with  an 
apologizing  and  fearful  tone,  doubting  his  strength  to  heave 
off  the  ponderous  weight  of  British  authority,  and  stem 
the  mighty  current  of  British  competition.  Our  emanci- 
pation from  this  oppression  ...  of  foreign  juridical  author- 
ity has  since  been  accomplished." 

David  Hoffman's  Course  of  Legal  Study,  which  for  many 
years  was  the  standard  manual  for  law  students,  appeared 
in  1817. 

In  1823,  Nathan  Dane  published  the  first  volume  of  his 
Abridgment  of   American    Law,    the  profits  from    which 


AMERICAN  LAW  BOOKS,   1815-1910  541 

were  to  be  the  means  of  the  re-creation  of  the  Harvard 
Law   School. 

In  182 1,  Caleb  Gushing  edited  the  first  American  trans- 
lation of  Pothicr's  Maritime  Contracts.^ 

In  1822,  came  a  second  edition  of  the  first  book  on 
patent  law,  Fessenden's  Law  of  Patents  for  Nc-w  Inven- 
tions; in  1823,  the  first  American  book  on  insurance 
law,  by  Willard  Phillips. 

In  1824,  came  Angell  on  Watercourses,  in  the  preface  to 
which  is  found  the  following  interesting  comment,  showing 
the  book  to  have  really  been  the  first  American  Case  Book: 

"The  plan  of  putting  adjudged  cases  into  an  appendix  .  .  . 
was  recommended,  by  one  whose  distinguished  talents  and 
profound  knowledge  of  the  law  have  made  him  an  orna- 
ment and  blessing  to  his  country  —  Mr.  Justice  Story." 

The  book  contained  96  pages  of  text  and  246  pages  of 
cases. 

In  the  years  1822  and  1825,  a  new  department  of  legal 
literature  was  opened  by  the  publication  in  Philadelphia 
of  Thomas  Sergeant's  Constitutional  Law  and  WilHam 
Rawle's  A  View  of  the  Constitution  of  the  United  States;  and 

^  See  also  Digests  of  American  Reports  and  American  Law  Periodicals 
—  Amer.  Jurist,  Vol.  XXIII  (1S40). 

Kent's  Commentaries,  Vol.  Ill,  p.  201,  note  (ist  ed.): 

"The  translation  of  Pothicr's  Treatise  on  Maritime  Contracts  by  Mr.  C. 
Gushing  and  published  at  Boston  in  1821  is  neat  and  accurate  and  the 
notes  which  are  added  to  this  volume  are  highly  creditable  to  the  industry 
and  learning  of  the  author.  ...  It  would  contribute  greatly  to  the  circu- 
lation and  cultivation  of  maritime  law  in  this  country  if  some  other 
treatise  of  Pothier  and  also  the  commentaries  of  Valin  could  appear  in  an 
English  dress." 

In  the  third  edition,  Kent  said:  "Mr.  L.  S.  Gushing  has  published  at 
Boston  a  translation  of  Pothicr's  Treatise  on  the  Contract  of  Sale;  and  if  duly 
encouraged,  as  we  hope  and  trust  he  will  be,  he  promises  a  translation 
of  the  other  excellent  treatises  of  Pothier  on  the  various  commercial 
contracts." 


542  A  HISTORY  OF  THE  AMERICAN  BAR 

in  1823  John  Taylor  published  in  Philadelphia  his  New 
Views  of  the  Constitution  of  the  United  States. 

In  the  same  years,  another  subject  was  treated  for  the 
first  time  in  the  United  States  —  that  of  contracts  —  in 
Daniel  Chipman's  Essay  on  the  Law  of  Contracts  for  Pay- 
ment of  Specific  Articles  (Middlebury,  1822),^  and  in  Gulian 
C.  Verplanck's  Essay  on  Doctrine  of  Contracts;  being  an 
Inquiry  how  Contracts  are  affected  in  Law  and  Morals  by 
Concealment,  Error,  or  Inadequate  Price  (New  York,  1825). 

In  a  review  of  this  latter  work  by  Joseph  Hopkinson,  a 
noted  lawyer  of  Philadelphia,  the  state  of  American  legal 
writing  is  thus  depicted  in  1827:  ^ 

"The  learning  and  industry  of  the  American  lawyer  have 
been  repeatedly  exercised  in  the  republication  of  professional 
works,  with  such  additions  as  were  proper  to  render  them 
more  useful  to  the  American  student;  but  an  original 
treatise  on  the  science  of  jurisprudence  is  a  rare  occurrence 
with  us." 

In  1824,  Asahel  Stearns  published  his  Summary  of  the 
Laws  and  Practice  of  Real  Actions,  in  the  preface  of  which 
he  states  that  the  treatise  is  the  "substance  of  his  course 
of  lectures  at  the  Law  Department  in  the  University." 

The  year  1826  was  a  landmark  in  American  legal  litera- 
ture for  in  the  spring  of  that  year  Chancellor  Kent,  at  the 
age  of  sixty-three,  undertook  the  task  of  embodying  in  a 
book,  the  mass  of  American  Common  Law,  using  as  a 
basis  his  lectures  given  in  1823  and  1824  at  Columbia  Col- 
lege; 3   and  in  the  fall,  Volume  I  of  his  Commentaries  was 

1  See  Review  by  Nathan  Dane  in  North  American  Review,  Vol.  XVII 
(1823). 

2  See  Review  in  American  Quarterly  Review,  Vol.  I  (March,  1827). 

'  See  letter  of  Kent  to  Story,  Dec.  18,  1824,  Mass.  Hist.  Soc.  Proc,  2d 
series,  Vol.  XVI  (1902). 

"I  sent  a  day  or  two  ago  by  the  mail,  the  summary  of  the  first  twenty  lec- 
tures of  my  present  or  2nd  course.    I  know  you  are  so  kind  as  to  take  some 


AMERICAN  LAW  BOOKS,   1815-1910  543 

published.  In  April,  1830,  Volume  IV  was  published;  and 
the  work  meeting  with  instant  and  enthusiastic  success,  a 
second  edition  was  printed  as  early  as  1832. 

In  a  review  of  this  work,  George  Bancroft  said  in  1827:  ^ 

"Now  we  know  what  American  Law  is;  we  know  it  is  a 
science  which  indeed  has  not  reached  its  utmost  degree 
of  perfection,  but  is  fast  advancing  towards  it.  We  know 
it  is  a  science  which  in  the  course  of  another  fifty  years 
will  by  its  own  force,  vi  propria,  expel  from  our  shelves 
the  ponderous  mass  of  foreign  lore  by  which  they  are  still 
encumbered,  and  perhaps  (the  idea  is  not  at  all  wild  or 
extravagant)  and  perhaps,  we  venture  to  say,  make  the 
works  of  our  writers  on  jurisprudence  the  ornament  of  the 
libraries  of  foreign  jurists." 

In  the  same  year.  Chief  Justice  Isaac  Parker  referred  to 
it  in  one  of  his  judicial  opinions,  as  "a  recently  published 
book  which  I  trust  from  the  eminence  of  its  author  and 
the  merits  of  the  work  will  soon  become  of  common  refer- 
ence in  our  courts."  ^ 

In  1828,  Charles  Jackson,  Judge  of  the  Supreme  Court 
of  Massachusetts,  published  his  well  known,  much  needed, 
and  much  used  Treatise  on  the  Pleadings  and  Practice  in 
Real  Actions,  in  the  preface  of  which  he  refers  to  Professor 
Stearns'  book  as  composed  on  a  different  plan,  saying, 
"an  inconvenience  has  attended  the  use  of  real  actions  in 
this  country  from  the  want  of  some  digest  of  this  branch 

interest  in  my  pursuits,  and  this  emboldened  me  to  trouble  you  with  such 
an  uninteresting  paper.  .  .  .  You  need  not  be  apprehensive  that  the  topics 
I  am  discussing  will  lead  to  commence  a  crusading  war  on  your  judicial 
opinions.  ...  I  almost  uniformly  agree  with  you  and  in  every  case  in 
which  due  opportunity  offers  I  speak  of  you  and  of  your  court  as  you  desire 
in  the  height  of  your  ambition.  I  shall  find  some  fault  with  the  Steamboat 
Case,  but  most  decorously." 

1  See  Kent  on  American  Law,  by  George  Bancroft,  in  American  Quar- 
terly Revicii',  Vol.  I  (March,  1827). 

*  Dean  v.  Richmond,  5  Pick.  466. 


544  A  HISTORY  OF  THE  AINIERICAN  BAR 

of  the  law  and  of  a  manual  of  pleadings  adapted  to  our 
jurisprudence  and  modes  of  proceeding." 

An  interesting  sidelight  on  the  learning  of  the  American 
lawyer  of  this  period  is  found  in  Kent's  comments,  in  1829, 
on  Jackson's  book: 

''I  think  it  must  somewhat  startle  and  surprise  the 
learned  sergeants  at  Westminster  Hall  if  they  should  per- 
chance look  into  the  above  treatise  of  Judge  Jackson  on 
Pleadings  and  Practice  in  Real  Actions  or  into  the  work  of 
Professor  Stearns  on  the  Law  and  Practice  of  Real  Actions 
to  find  American  lawyers  much  more  accurate  and  familiar 
than,  judging  from  some  of  the  late  reports,  they  themselves 
appear  to  be  with  the  learning  of  the  Year  Books,  Fitz- 
herbert,  Rastel  and  Coke  on  the  doctrine  and  pleadings  in 
real  actions.  Until  the  late  work  of  Mr.  Roscoe  on  Law  of 
Actions  relating  to  Real  Property  which  was  subsequent  to 
that  of  Professor  Stearns  .  .  .  there  was  no  modern  work 
in  England  on  Real  Actions  to  be  compared  with  those  I 
have  mentioned.  Those  abstruse  subjects  are  digested  and 
handled  by  Judge  Jackson  with  a  research,  judgment, 
precision  and  perspicacity  that  reflect  lustre  on  the  pro- 
fession in  this  country." 

The  scope  of  the  American  law  books  above  enumerated, 
however,  shows  the  Hmited  field  of  the  law  of  this  period.^ 

The  period  from  1830  to  i860  was  one  of  great  activity 
and  of  splendid  accomplishment  by  the  American  law 
writers.  Chief,  of  course,  of  all  legal  works  were  the  great 
series  of  commentaries  on  the  law  written  by  Judge  Joseph 
Story  and  which  appeared  as  follows:    Bailments  (1832); 

^  In  addition  to  the  books  given  above,  the  following  are  the  only  law 
works  of  importance  written  by  Americans  at  this  period: 

Angell  on  Adverse  Possession,  in  1827,  and  Angell  on  Assignments,  in 
1825;  John  Anthon's  Law  of  Nisi  Prius,  in  1820;  Blake's  New  York  Chan- 
cery Practice,  in  1818;  Dunlap's  New  York  Supreme  Court  Practice,  in  1821; 
Daniel  Davis'  Justices  oj  the  Peace,  in  1828;  Reeve's  Law  of  Descefit,  in 
1825. 


AMERICAN  LAW  BOOKS,   1815-1910  545 

Constitutional  Law  (1833);^  ConJIid  of  Laws  (1834); 
Equity  Jurisprudence  (1836);  Equity  Pleading  (1838); 
Agency  (1839);  Partnership  (1841);  Bills  of  Exchange 
(1843).  O^  his  Commentaries  on  the  Conflict  of  Laws  it  is 
not  too  much  to  say  that  its  publication  constituted  an 
epoch  in  the  law;  for  it  became  at  once  the  standard  and 
ahnost  the  sole  authority.  It  was  reprinted  almost  imme- 
diately in  England,  France  and  Germany,  and  received 
the  honor  of  being  practically  the  first  American  law  book 
to  be  cited  as  authority  in  English  Courts.^ 

^  Two  other  books  on  constitutional  law  attracted  attention  at  this 
critical  period  —  W.  A.  Duer's  Outlines  of  the  Constitutional  Jurisprudence 
of  the  United  States,  and  P.  DuPonceau's  Brief  View  of  the  Constitution  of 
the  United  States. 

*  Sir  N.  C.  Tindal,  Chief  Justice  of  Common  Pleas,  in  Hjiber  v.  Steiner, 
2  Bing.  New  Cases,  211,  said:  "It  would  be  unjust  to  mention  it  without  at 
the  same  time  paying  a  tribute  to  the  learning,  acuteness  and  sagacity  of 
its  author." 

And  Daniel  Webster  in  his  argument  before  the  Supreme  Court  in  New 
Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  6  Howard,  92  (1848), 
paid  this  splendid  tribute: 

"It  is  a  great  truth  that  England  has  never  produced  any  eminent  writer 
on  national  or  general  public  law  —  no  elementary  writer  who  has  made  the 
subject  his  own,  who  has  breathed  his  owti  breath  into  it  and  made  it  live. 
In  English  judicature  Sir  William  Scott  has,  it  is  true,  done  much  to  en- 
lighten the  public  mind  on  the  subject  of  prize  causes,  and  in  our  day  Mack- 
intosh has  wTitten  a  paper  of  some  merit.  But  where  is  your  English 
Grotius?  Where  is  your  English  Barbeyrac?  Has  England  produced  one? 
Not  one.  The  English  mind  has  never  been  turned  to  the  discussion  of 
general  public  law.  We  must  go  to  the  continent  for  the  display  of  genius 
in  this  department  of  human  knowledge.  WTiat  have  the  Courts  of  West- 
minster Hall  done  to  illustrate  the  principles  of  public  law?  With  the  ex- 
ception of  a  tract  by  Mansfield,  of  considerable  merit,  more  great  principles 
of  public  law  have  been  discussed  and  settled  by  this  Court  within  the 
last  twenty  years,  than  in  all  the  Common  Law  Courts  of  England  for  the 
last  hundred  years.  Nay,  more  important  subjects  of  law  have  been  ex- 
amined and  passed  upon  by  this  bench  in  a  series  of  twenty  years,  than 
in  all  Europe  for  a  century  past.  And  I  cannot  forbear  to  add,  that  one 
in  the  midst  of  you  has  favored  the  world  with  a  treatise  on  public  law, 
fit  to  stand  by  the  side  of  Grotius,  to  be  the  companion  of  the  Institutes, 


546  A  fflSTORY  OF  THE  A^IERICAN  BAR 

In  1832,  Joseph  K.  Angell  and  Samuel  Ames  published 
their  Law  of  Private  Corporations,  the  first  book  on  the 
subject;  and  Judge  James  Gould  of  the  Litchfield  Law- 
School  pubUshed  his  famous  book  on  Pleading. 

In  1837,  Timothy  Walker  pubhshed  his  Introduction  to 
American  Law,  which  for  many  years  was  used  as  a  text- 
book for  American  law  students.  In  1836  appeared  Henry 
WTieaton's  Elements  of  International  Law. 

In  1838,  Francis  HilUard  pubhshed  his  Real  Property 
which  largely  replaced  Cruise's  Digest  with  American 
lawyers. 

In  1839,  appeared  John  Bouvier's  noted  Law  Dictionary. 

In  1842,  came  the  first  volume  of  Greenleaf  on  Evidence. 

In  1847,  Theodore  Sedgwick,  Jr.  pubhshed  his  Elements 
of  Damages  —  the  first  book  on  the  subject  then  written, 
excepting  only  a  "slender  and  shadowy  book  of  Sayers 
(London,  1770)."  ^ 

In  1849,  appeared  Angell  on  Carriers,  the  first  book  to 
treat  of  the  subject  of  railroads. 

In  1853,  Professor  Theophilus  Parsons  of  the  Harvard 
Law  School  issued  his  famous  work  on  Contracts;  and  in 
1856,  his  Elements  of  Mercantile  Law,  and  in  1859,  his 
Maritime  Law.  In  1856,  came  Joel  P.  Bishop's  Criminal  Law. 

In  1857,  came  the  first  book  devoted  to  railway  law, 
Edward  L.  Pierce's  American  Railway  Law  —  "the  first 
book  of  the  kind  on  a  subject  of  increasing  interest,"  said 

a  work  that  is  now  regarded  by  the  judicature  of  the  world,  as  the  great 
book  of  the  age —  Story's  Conflict  of  Laws." 

1  See  review  in  Law  Reporter,  Vol.  IX. 

An  article  in  American  Law  Register,  Vol.  II,  in  1853-1854,  on  the  case 
of  Iladley  v.  Baxendale,  treats  the  law  of  damages  as  a  new  branch  of  law, 
saying: 

"Among  the  interesting  questions  which  are  daily  arising  in  our  courts 
of  law  we  may  certainly  rank  those  which  relate  to  the  measure  of  damages 
awarded  to  the  successful  party  in  an  action." 


AMERICAN  LAW  BOOKS,   1815-1910  547 

the  Law  Reporter  (Vol.  XX) ;  and  in  the  next  year,  1858, 
came  Judge  Isaac  F.  Rcdfield's  valuable  book  on  Railways} 

In  1857,  Causten  Browne's  Statute  of  Frauds  was  pub- 
lished —  the  first  book  on  the  subject  since  Roberts'  in 
England,  fifty  years  before. 

A  group  of  three  law  books  of  great  importance  in  their 
time  was  devoted  to  a  legal  topic,  now  happily  obsolete  — 
the  law  of  slavery:  A  Practical  Treatise  on  the  Law  of 
Slavery  by  Jacob  D.  Wheeler,  issued  in  1837;  Law  of  Free- 
dom and  Bondage  in  the  United  States,  by  John  C.  Hurd, 
and  Law  of  Negro  Slavery  in  the  United  States,  by  T.  R.  R. 
Cobb,  the  two  latter  books  appearing  in  1858,  only  four 
years  before,  by  the  emancipation  of  the  slaves,  all  books 
of  law  on  the  subject  became  unnecessary. 

During  the  period  from  1820  to  i860,  several  law  journals 
of  eminence  were  published. 

In  1822-1823  there  appeared  William  Griffith's  valuable 
Annual  Law  Register. 

Between  1822  and  1826,  the  United  States  Law  Journal, 
edited  by  members  of  the  Connecticut  and  New  York 
Bars,  had  been  published;  in  1829,  the  United  States  Law 
Intelligencer  and  Review  had  been  started  at  Providence, 
but  lasted  only  three  years;  and  in  the  same  year  the 
noted  American  Jurist,  in  Boston,  which  lasted  until  1842 
and  to  which  Story,  Charles  Sumner,  Asahel  Stearns, 
Charles  G.  Loring,  Luther  S.  Gushing,  George  S.  Hillard, 
and  many  of  the  ablest  lawyers  of  Massachusetts  were 
contributors.2  The  Law  Reporter  was  published  at  Boston 
from  1838  to  1866;  the  Western  Law  Journal,  at  Cincin- 
nati, from  1843  to  1853;  the  American  Law  Register,  at 
Philadelphia,   from   1852   to   1861    (old   series);    and   the 

1  In  1851,  a  collection  of  The  Railroad  Laws  and  Charters  of  the  United 
States  had  been  issued  —  sec  review  in  Law  Reporter,  Vol.  XIV. 
*  See  article  on  American  Law  J&tirttals,  in  Law  Reporter,  Vol.  VII. 


548  A  HISTORY  OF  THE  AMERICAN  BAR 

American  Law  Magazine,  at  Philadelphia,  from  1843  to 
1845.    The  American  Law  Review  began  in  1867. 

\\Tiile  it  is  not  within  the  scope  of  this  book  to  describe 
the  Federal  Bar  or  the  legal  conditions  of  a  date  later  than 
i860,  the  following  rapid  survey  of  legal  literature  since 
that  year  to  the  present  time,  may  serve  to  throw  a  side- 
light on  the  development  of  the  modern  American  lawyer. 

The  period  from  i860  to  1885  was  one  of  splendid  achieve- 
ment in  American  legal  literature.  No  attempt  is  here 
made  to  give  a  complete  list;  but  some  of  the  works  of 
importance  in  the  development  of  the  law,  or  of  interest 
in  denoting  changing  economic  conditions,  are  mentioned 
in  order  to  illustrate  the  influences  under  which  the  modern 
lawyer  has  worked. 

In  1860-1862  appeared  Emory  Washburn's  American 
Law  of  Real  Property,  the  first  comprehensive  native  book 
on  this  subject;  in  1863,  Washburn's  work  on  Easements; 
in  1865,  Theophilus  Parsons'  on  Promissory  Notes  atid 
Bills  of  Exchange;  and  in  1867,  his  book  on  Partnership. 
These  were  the  work  of  two  professors  at  the  Harvard  Law 
School,  whose  "distinguished  jurists  have  done  so  much 
to  illustrate  and  adorn  American  jurisprudence,"  said  the 
Law  Reporter  (Vol.  XXIII). 

In  1867  appeared  one  of  the  early  books  on  a  new  branch 
of  the  law  which  had  developed  within  fifteen  years,  — 
Gregory  Yale's  Legal  Titles  to  Mining  Claims,  etc.,  of 
which  the  American  Law  Review  (Vol.  II)  said: 

"In  the  Mississippi  Valley,  and,  above  all,  on  the  Pacific 
Ocean,  States  have  sprung  into  existence  and  reached  a 
full  growth  in  the  midst  of  the  intelHgence  of  the  Nineteenth 
Century.  Nowhere  else  can  we  so  well  learn  the  origin 
of  customs  and  the  ripening  of  customs  into  law.  The 
growth  of  these  communities  has  been  so  rapid  as  to  out- 
strip all  legislation,  and  the  people  have  had  to  become 


AMERIC/\N  LAW  BOOKS,   1815-1910  549 

a  law  unto  themselves.  The  topic  of  the  present  work  is 
perhaps  the  best  illustration.  The  feudal  law  of  real 
property  has  had  to  give  way  to  the  exigencies  of  the  case, 
and  the  miners  of  California  have  had  to  establish  for 
themselves  a  set  of  rules  which  is  now  declared,  or  rather 
recognized  by  the  courts  and  the  legislature,  as  the  common 
law  of  the  land." 

The  great  development  of  railroad  and  street  railway 
law  within  ten  years  was  marked  by  a  third  edition  of 
Redfield  on  Railways  in  1867,  of  which  the  Law  Review 
(Vol.  II)  said: 

"In  the  nine  years  which  have  elapsed  since  the  second 
edition  was  published,  few  departments  of  the  law  have 
received  so  much  additional  light  from  litigation  as  that 
concerning  the  powers  and  liabilities  of  railway  corpora- 
tions. ...  A  valuable  feature  of  this  treatise  is  a  discus- 
sion of  the  numerous  vexed  questions  concerning  horse- 
railways.  We  do  not  know  that  this  has  been  done  before; 
but  it  certainly  is  high  time  that  it  should  be  done.  The 
horse-railway  system  grew  up  with  probably  as  little  con- 
sideration of  the  legal  aspects  of  the  question  that  were 
certain  to  arise,  as  was  possible  in  such  a  community  as 
ours." 

In  1868,  John  Norton  Pomeroy  published  the  first  sub- 
stantial book  on  Constitutional  Law  since  Judge  Story's  in 
1833;  and  in  the  same  year  appeared  Thomas  M.  Cooley's 
Constitutional  Limitations. 

The  first  treatise  on  the  Law  of  Telegraphs  by  William  L. 
Scott  and  Milton  P.  Jarnagin  appeared  also  in  1868,  which 
the  American  Law  Review  (Vol.  II)  described  as: 

"the  best  which  can  now  be  written,  considering  the  new- 
ness of  the  subject  discussed  and  the  contrariety  of  the 
judicial  mind  with  regard  to  the  duties  and  responsibili- 
ties of  those  who  engage  in  the  transmission  of  messages 
by  the  electric  telegraph." 


550  A  fflSTORY  OF  THE  AMERICAN  BAR 

The  tremendous  increase  during  the  last  forty  years  in 
the  part  which  the  subject  of  neghgence  plays  in  the  prac- 
tise of  the  law  is  illustrated  by  the  fact  that  the  first  law 
book  on  that  special  subject  was  published  as  late  as  1869 
by  Thomas  G.  Shearman  and  Amasa  A.  Redfield  —  Treatise 
on  the  Law  of  Negligence,  —  of  which  the  Law  Review 
(Vols.  rV,  V)  stated: 

"Negligence  has  now  for  the  first  time  been  treated  of 
as  a  special  subject.  The  volume  is,  as  its  authors  claim, 
*a  pioneer  in  its  peculiar  field.'  .  .  .  The  authors  were 
philosophical  in  their  first  step  when  they  planted  them- 
selves upon  a  legal  conception  instead  of  a  branch  of  trade, 
as  is  too  often  the  case  nowadays.  Negligence  is  a  better 
subject  for  a  law  book  than  telegraphs." 

The  year  1870  is  to  be  especially  noted  for  the  appear- 
ance of  a  landmark  in  legal  education,  Christopher  C. 
Langdell's  A  Selection  of  Cases  on  the  Law  of  Contracts. 
This  was  the  work  which  introduced  the  teaching  of  what 
is  known  as  the  "case  system"  in  American  law  schools  — 
a  revolution  in  former  methods  of  legal  instruction.  The 
legal  profession  received  this  new  method  with  much  con- 
flict of  opinion,  and  with  a  decided  preponderance  of 
hostiHty.  The  following  articles  show  the  varying  views. 
The  American  Law  Review  (Vol.  XIV),  as  late  as  1879, 
paid  an  enthusiastic  tribute  to  Langdell  in  a  review  of  the 
second  edition  of  his  Contracts: 

"It  is  hard  to  know  where  to  begin  in  dealing  with  this 
extraordinary  production,  equally  extraordinary  in  its 
merits  and  its  Hmitations.  No  man  competent  to  judge 
can  read  a  page  without  at  once  recognizing  the  hand  of  a 
great  master,  and  every  line  is  compact  of  ingenious  and 
original  thought.  Decisions  are  reconciled,  which  those 
who  made  them  meant  to  be  opposed,  and  drawn  together 
by  subtle  lines  which  were  never  dreamed  of  before  Mr. 
Langdell  wrote.    It  may  be  said  without  exaggeration  that 


AMERICAN  LAW  BOOKS,   1815-1910  551 

there  cannot  be  found  in  the  legal  literature  of  this  country 
such  a  tour  de  force  of  patient  and  profound  intellect  work- 
ing out  original  theory  through  a  mass  of  detail,  and  evolv- 
ing consistency  out  of  what  seemed  a  chaos  of  conflicting 
actions." 

On  the  other  hand,  in  this  same  year  (1879),  the  Southern 
Law  Review  said : 

"We  never  could  clearly  appreciate  why  this  collection 
(now  for  the  first  time  issued  in  two  volumes),  and  Pro- 
fessor Langdell's  corresponding  collection  of  Cases  on 
Sales  were  published.  He  appears  to  have  had  a  hobby, 
and  this  hobby  that  the  law  ought  to  be  taught  exclusively 
by  means  of  cases  in  some  form.  .  .  .  We  suppose  we  must 
accept  a  reappearance  of  the  second  edition  of  this  work 
without  much  change  as  an  evidence  that  Professor  Lang- 
dell's original  views  are  still  persisted  in.  There  is  Just  as 
much  sense  in  endeavoring  to  instruct  students  in  the 
principles  of  law  by  the  exclusive  reading  of  cases  as  there 
would  be  in  endeavoring  to  instruct  the  students  of  the 
West  Point  Military  Academy  in  the  art  of  war  by  com- 
pelling them  to  read  the  official  reports  of  all  the  leading 
battles  which  have  been  fought  in  the  w^orld's  history.  .  .  . 
In  our  judgment,  the  chief  value  of  the  present  work  con- 
sists in  the  Summary  which  Professor  Langdell  has  appended 
to  the  second  volume.  We  cannot  doubt  that  it  is  a  valuable 
review  of  the  matter  presented  in  the  cases.  At  a  glance 
we  can  see  that  it  performs  one  important  office :  it  points 
out  which  of  them  are  overruled!" 

The  year  1872  was  remarkable  for  a  group  of  law  books 
of  prime  importance,  chief  of  which  was  a  legal  classic,  in 
the  writing  of  which  Judge  John  F.  Dillon  had  spent  nine 
years,  his  Municipal  Corporations,  the  first  American  book 
entirely  devoted  to  this  branch  of  law.  In  the  same  year, 
Jairus  W.  Perry  published  his  Law  of  Trusts  ajid  Trustees; 
Francis  W^harton,  his  Conflict  of  Laws  (the  first  on  this  sub- 
ject since  Story's  in  1834) ;    Melville  M.  Bigelow,  his  Law 


552  A  HISTORY  OF  THE  AMERICAN  BAR 

of  Estoppel,  "a  treatise  on  a  new  subject  —  a  new  branch 
of  law,  estoppel  by  matter  in  pais''  as  the  Law  Review 
(Vol.  VI)  termed  it;  Orlando  F.  Bump,  his  Conveyances 
made  by  Debtors  to  Defraud  Creditors,  "a  work  of  novel 
impression." 

In  the  next  two  years  came  three  books  of  value:  James 
Schouler's  on  Personal  Property  (1873);  James  L.  High's 
on  Injmictions{i^u) ;  A.  C.  Freeman's  on  Judgments  (1873), 
—  the  first  on  this  topic,  of  which  the  Law  Review  (Vol. 
VII)  said:  " Modern  growths  of  civilization  necessarily  de- 
velop new  topics  in  the  law;  but  here  is  one  of  the  oldest 
subjects  which  has  been  overlooked,  though  its  importance 
is  second  to  almost  none." 

The  year  1876  was  fruitful  in  important  works,  chief 
of  which  were  John  W.  Daniels'  Negotiable  Instruments; 
Cooley's  Taxation  —  "a  substantially  new  subject  in 
law,"  said  the  Law  Review  (Vol.  X);  High's  Receivers,— 
"the  first  effort  to  present  the  entire  body  of  English  and 
American  laws  on  the  subject."  Of  this  latter  book,  it  may 
be  noted  that  the  great  fires  in  Boston  and  Chicago,  and 
the  financial  troubles  of  the  country,  of  that  period,  made 
its  appearance  extremely  timely.  A  book  pubHshed  in 
the  next  year,  1877,  illustrated  the  growth  of  a  body  of 
law,  due  also  to  disastrous  conditions  of  railroad  and 
municipal  finances,  —  G.  C.  Clemens'  Law  of  Corporate 
Securities  as  Decided  in  the  Federal  Courts.  The  Law  Re- 
view (Vol.  XIII)  speaking  of  the  "magnitude  of  the  pro- 
portions of  railroad  Htigation,"  in  a  review  of  Leonard  A. 
Jones'  Law  of  Railroad  and  Other  Corporate  Securities,  in 
1879,  said:  "The  disasters  to  railroad  enterprises,  and 
"  the  extraordinary  and  prolonged  depression  of  business 
within  the  last  seven  years,  have  placed  extraordinary 
temptations  before  municipaUties,  groaning  under  the 
burdens  arising  from  extravagance,  to  seek  to  evade  the 


AMERICAN  LAW  BOOKS,   1815-1910  553 

pa>Tncnt  of  their  contracts  for  the  aid  of  railroads.    The 
result  has  been  an  unexampled  number  of  suits." 

Other  books  reflecting  the  financial  conditions  were 
Jones'  work  on  Mortgages  in  1878,  of  which  the  Law  Review 
(Vol.  XrV)  said:  "An  essentially  clear  field  .  .  .  during 
the  last  half  dozen  years  has  come  more  directly  home  to  what 
Lord  Duflerin  aptly  describes  as  the  'pedora  et  negotia' 
of  the  community,  than  any  subject  treated  of  during  that 
period;"  and  Dillon's  Removal  of  Causes  from  State  Courts 
to  Federal  Courts,  in  1877,  and  a  third  edition  in  1881  of 
the  latter,  of  which  the  Law  Review  (Vol.  XV)  said:  "The 
expansion  of  the  monograph  from  105  pages  in  1877  to 
168  pages  in  1881  illustrates  the  appalling  growth  of 
case  law  in  this  country,  —  the  strong  tendency  of 
the  Federal  judiciary  to  assert  vigorously  their  own 
jurisdiction." 

In  1877  appeared  Melville  M.  Bigelow's  Fraud;  in  1879, 
Philemon  Bliss'  Code  Pleading,  illustrating  the  spread  of 
Davis  Dudley  Field's  propaganda  in  behalf  of  civil  codes ; 
of   procedure;    and    in    1879,   Henry   E.   Mills'   Eminent 
Domain,  another  work  of  novel  impression. 

The  immense  modern  growth  of  private  corporation  law 
made  necessary  new  work  on  special  topics,  like  Seymour 
D.  Thompson's  Law  of  Stockholders  in  Corporations  in 
1879,  and  The  Liability  of  Directors  and  Other  Officers  and 
Agents  of  Corporations,  in  1880;  and  the  modern  view  of 
corporations  was  expressed  in  Victor  Morawetz's  work  on 
Private  Corporations,  in  1882,  of  which  the  Law  Review 
(Vol.  XVI)  said: 

"The  book  is  an  illustration  of  the  transition  through 
which  the  law  is  passing  from  the  view  that  a  corporation  is 
a  unit,  a  personality,  to  the  view  that  it  is  a  legal  institution 
which  is  merely  the  source  of  rights  belonging  to  various 
classes  of  persons,  which  rights,  like  many  other  rights, 


554  A  HISTORY  OF  THE  AMERICAN  BAR 

can  ordinarily  be  affected  only  through  the  action  or  neglect 
of  those  to  whom  they  belong." 

The  twenty  years  from  1880  to  1900  were  less  fruitful  of 
great  works.  In  1880  appeared  Cooley's  Constitutional 
Law.  In  1881  appeared  Oliver  Wendell  Hohnes,  Jr.'s,  re- 
markable work  of  juristic  research  and  originality  TJie 
Common  Law;  and  Pomeroy's  Equity  Jurisprudence  (the 
first  complete  work  of  the  kind  since  Story's  in  1836).  • 
Henry  N.  Sheldon's  Subrogation,  in  1882,  and  John  D. 
Lawson's  Law  of  Usages  and  Customs,  in  1881,  filled  real 
lacks  in  legal  literature.  In  1883  appeared  one  of  the  few 
American  legal  works  of  absolute  authority,  John  C. 
Gray's  Restraints  on  the  Alienation  of  Property.  Frederic 
J.  Stimson's  American  Statute  Law,  in  1886,  WiUiam  W. 
Cook's  Stock  and  Stockholders,  in  1887,  and  Floyd  R. 
Mechem's  Agency  in  1889  may  be  noticed.  In  1890,  Roger 
Foster's  Federal  Practice,  bore  witness  to  the  greatly  in- 
creased importance  of  the  Federal  courts;  B.  F.  Dos 
Passos'  work  on  Collateral  Succession  and  Inheritance 
Taxes  introduced  a  knowledge  of  a  form  of  taxation  in 
comparatively  little  use  at  that  period;  and  WilHam  C. 
Robmson  pubHshed  the  most  comprehensive  work  on 
Patents  written  up  to  that  time. 

Seymour  D.  Thompson's  Law  of  Electricity,  in  1891,  was 
thus  spoken  of  in  the  Harvard  Law  Review  (Vol.  V):  "The 
growing  popularity  of  the  electric  current  as  a  means  of 
facihtating  travel  and  communication  of  all  kinds  has 
necessarily  brought  with  it  an  endless  flow  of  litigation  of 
an  entirely  novel  character;"  and  it  was  followed  by  / 
Edward  R.  Keasbey's  Laws  of  Electric  Wire  on  Streets  and  f 
F^g^ie^ays,  in  1892,  the  preface  to  which  said:  "It  is  always 
interesting  to  observe  the  manner  in  which  the  courts  deal 
wdth  new  inventions  and  apply  old  principles  of  law  to 
new  conditions." 


AIVIERICAN  LAW  BOOKS,   1815-1910  555 

In  1892  came  one  of  the  first  books  on  a  topic  which  has 
played  a  very  leading  part  in  legal  and  economic  history 
since,  —  William  Draper  Lewis'  The  Federal  Power  over 
Commerce,  —  the  Interstate  Commerce  Act  having  been 
passed  in  1887.  Judge  John  M.  Vanfleet's  Law  of  Col- 
lateral Attack  in  Judicial  Proceeding,  in  1892,  was  "the 
first  work  in  a  new  and  stony  field." 

The  first  book  involving  the  law  as  applied  to  labor  and 
trust  questions,  —  Charles  A.  Ray's  Contractual  Li^nita- 
tions  Including  Trade  Strikes  and  Conspiracies,  and  Cor- 
porate Trusts  and  Combinations,  appeared  in  1892;  and  in 
1894  appeared  (at  the  time  of  the  Pullman  strike)  Thomas 
S.  Cogley's  Strikes  and  Boycotts.  An  important  book  on 
a  novel  branch  of  law  was  Wilham  A.  Keener's  Quasi 
Contracts,  in  1893.  The  law  of  the  Employers'  Liability 
Acts,  which  had  existed  in  England  only  since  1880,  in 
Alabama  since  1885,  in  Massachusetts  since  1887,  ^^id  ui 
Colorado  and  Indiana  since  1893,  was  treated  in  Conrad 
Reno's  Employers^  Liability  Acts,  in  1896. 

Thompson's  Commentaries  on  the  Law  of  Private  Cor- 
porations was  a  notable  pubUcation  in  1895;  and  an  im- 
portant contribution  to  legal  learning,  in  1898,  was  James 
B.  Thayer's  A  Preliminary  Treatise  on  Evidence  at  the 
Common  Law.  In  1898,  the  growing  importance  of  trust 
questions  was  shown  by  Charles  F.  Beach's  Monopolies 
and  Industrial  Trusts,  and  The  Commerce  Clause  of  tJie 
Federal  Constitution,  by  E.  P.  Prentice  and  John  G.  Egan. 

The  centennial  aimiversary  of  John  Marshall's  installa- 
tion as  Chief  Justice  was  celebrated  on  February  4,  1901, 
throughout  the  country,  the  proceedings  on  which  day 
were  fitly  recorded  in  Dillon's  John  Marshall  —  Life, 
Character,  a?ul  Judicial  Service. 

In  1904-1905,  there  was  published  what  the  Harvard 
Law  Review  termed  "unquestionably  one  of  the  most  im- 


556  A  fflSTORY  OF  THE  AMERICAN  BAR 

portant  treatises  on  a  legal  subject  published  during  the 
last  generation,"  —  John  H.  Wigmore's  monumental  work 
A  Treatise  on  the  System  of  Evidence  in  Trials  at  Common 
Law.  American  Railroad  Rates,  by  Walter  C.  Noyes,  in 
1905,  marked  the  rise  of  the  regulation  of  railroad  rates  as 
a  legal  problem;  and  his  Law  oj  Intercorporate  Relations, 
in  1902,  also  illustrated  the  extent  to  which  complicated 
corporation  financial  questions  filled  the  courts.  The 
Law  of  Railroad  Rate  Regulation,  by  Joseph  H.  Beale  and 
Bruce  Wyman,  was  published  in  1906. 

Possibly  the  most  novel  and  remarkable  development 
in  legal  Hterature  in  the  last  forty  years  has  been  the 
writing  of  Case  Books  for  the  teaching  of  law  on  the  system 
founded  by  Professor  C.  C.  Langdell  at  the  Harvard  Law 
School  in  187 1.  After  much  opposition  on  the  part  of 
lawyers  and  law  professors,  this  system  made  such  progress 
that,  in  1902,  the  following  summing-up  was  made  by 
Professor  Ernest  W.  Huffcut,  of  Cornell,  in  an  address  be- 
fore the  American  Bar  Association.^  Of  the  98  law  schools 
reporting  to  him,  he  stated,  12  had  unequivocally  adopted 
the  Case  System;  34  had  unequivocally  adopted  the  text- 
book system  or  the  text-book  and  lecture  system;  33  em- 
ployed a  combination  of  the  Case  System  with  use  of  text- 
books and  lectures;  15  aimounced  the  use  of  text-books 
and  cases  for  regular  study  and  discussion. 

The  extent  of  the  practical  endorsement  that  has  been 
given  by  the  professors  of  law  may  be  seen  from  the  fact 
that  83  Case  Books  were  advertised  in  the  Harvard  Law 
Review  in  June,  1908,  of  which  only  27  had  been  prepared 
by  professors  of  the  Harvard  Law  School,  the  others  being 
the  work  of  professors  in  the  Law  Schools  of  Columbia, 
Cornell,    University    of    Michigan,    Boston    University, 

1  A  Decade  of  Progress  in  Legal  Education,  by  E.  W.  Huflfcut,  Ameri- 
can Bar  Assn.  Proc,  Vol.  XXV  (1902). 


AMERICAN  LAW  BOOKS,   1815-1910  557 

University  of  Indiana,  University  of  Missouri,  University 
of  Minnesota,  University  of  Pennsylvania,  University  of 
Chicago,  George  Washington  University,  Northwestern 
University,  University  of  Nebraska,  New  York  Law 
School,  University  of  the  City  of  New  York.  In  addition, 
a  series  of  over  30  volumes  "covering  the  fundamentals  of 
the  law  for  the  purpose  of  class  room  instruction,"  known 
as  the  American  Case  Book  Series  is  being  issued.^ 

In  the  last  one  hundred  years  the  accumulation  of  law 
reports  has,  as  is  well  known,  been  vast.  In  18 10,  there 
had  been  only  18  American  reports  pubHshed;  452  by 
1836;  about  800  by  1848;  2,944  by  1822;  ^  3,798  by  1885;  ^ 
and  in  1910  there  were  in  existence  8,208  volumes  of 
American  law  reports  (exclusive  of  about  2,000  volumes 
of  reprinted  collections  of  cases)  .^ 

Such  an  increase  made  necessary  the  pubUcation  of  the 
various  great  synopses  of  the  law  —  the  American  and 
English  Encyclopcedia  of  Law  in  188  7- 1896,  and  its  second 
edition  in  1896-1905;  the  Cyclopoedia  of  Law  and  Pro- 
cedure in  1901-1911;  and  the  American  Digest,  Century 
Edition,  in  189 7- 1904. 

The  most  comprehensive  view  of  the  historical  progress 
of  American  law  is  to  be  found  in  Two  Centuries  Growth  oj 

'  In  this  connection  it  may  be  of  interest  to  refer  to  an  article  by  Pro- 
fessor Albert  Martin  Kales  entitled  Tlie  Next  Step  in  the  Evolution  of  the 
Case  Book,  in  Harvard  Law  Review,  Vol.  XXI  (1907);  and  to  an  article  by 
Henry  W.  Ballantine  on  Adapting  tite  Case  Book  to  the  Needs  of  Professional 
Training,  in  Amer.  Law  School  Review,  Vol.  II  (190S). 

See  also  the  Report  of  the  United  States  Commissioner  of  Education  in 
1890-1891,  for  a  full  bibliography  on  the  subject  of  Legal  Education. 

*  See  What  Sltall  Be  Done. with  the  Reports?  —  Amer.  Law  Review,  Vol. 
XVI  (1882). 

'  See  Laws  and  Jurisprudence  of  England  and  America,  by  John  F. 
Dillon  (189s). 

*  See  valuable  list  of  reports  given  in  Where  to  Look  for  the  Law  (Law- 
yers* Co-op.  Publishing  Co.  [1910]). 


v/ 


SsS  A  fflSTORY  OF  THE  AMERICAN  BAR 

American  Law,  published  in  1901  by  members  of  the  Yale 
Law  Faculty. 

The  principal  tools  of  his  trade  furnished  to  the  modern 
American  lawyer  during  the  past  fifty  years  have  now 
been  enumerated;  and  the  list,  though  comprising  a  mass 
of  dry  details,  throws  an  interesting  Hght  on  his  progress 
in  the  one  hundred  and  twenty- two  years  since  1789. 

The  attempt  has  been  made  in  this  book  to  present  in 
historical  series  some  of  the  conditions  affecting  the  Bar 
and  the  Bench  of  this  country.  The  law  cannot  rightly 
be  regarded  as  something  aside  and  apart  from  the  lawyers 
and  the  judges  who  make  it.  As  a  writer  in  the  American 
Law  Review  said,  in  1882:  ^  "To  study  law  without  under- 
standing the  character  and  habits  of  the  race  with  which 
it  has  grown  up,  is  studying  history  without  geography.  .  .  . 
It  was  not  by  devoting  themselves  to  the  niceties  of  the 
law  that  Mansfield  and  Marshall  became  great  magis- 
trates. Their  studies  had  been  such  as  qualified  them  for 
statesmen  as  well." 

In  studying  a  case  and  the  meaning  of  its  decision,  the 
lawyer  must,  if  he  would  fully  grasp  its  import,  know 
something  of  the  judges  who  rendered  the  decision,  the 
influences  surrounding  them,  and  the  abihty  of  the  counsel 
who  argued  before  them.  That  a  case  was  argued  by 
Pinkney,  Webster,  Jeremiah  Mason,  Rufus  Choate,  Reverdy 
Johnson,  William  Wirt,  or  John  Sergeant,  means  of  itself 
that  every  possible  assistance  was  given  to  the  court. 
Thus,  Mr.  Justice  Miller  spoke  in  one  of  his  decisions  of 
a  case  in  volume  ten  of  Peters'  Reports,  as  one  "argued  at 
much  length  by  Mr.  Webster,  Mr.  Sergeant  and  Mr.  Clay- 
ton, whose  names  are  a  sufficient  guarantee  that  the  matter 

>  See,  Three  Kinds  of  Law  Books  —  American  Law  Review,  Vol.  XVI 
(1882). 


AMERIC.VN  LAW  BOOKS,  1815-1910  559 

was  well  considered."  And  Professor  Simon  Greenleaf,  in 
addressing  his  law  students  in  1838,  pointed  particularly 
to  this  need  of  a  knowledge  of  the  law  from  its  personal 
and  historical  side: 

"Judges  and  lawyers,  like  other  classes  of  men,  become 
interested  in  the  absorbing  topics  of  the  day,  and  subjected 
to  their  magnetic  influences;  and  some  passages  in  the 
history  of  the  times,  or  some  glimpses  of  their  temper  and 
fashion  may  be  seen  in  the  most  dispassionate  legal  judg- 
ments. .  .  .  The  manner  of  the  decision,  the  reasons  on 
which  it  is  professedly  founded,  and  even  the  decision  itself, 
may  receive  some  coloring  and  impress  from  the  position 
of  the  judges,  and  their  political  principles,  their  habits 
of  life,  their  physical  temperament,  their  intellectual,  moral 
and  religious  character,  .  .  .  Thus  we  should  hardly  expect 
to  find  any  gratuitous  presumption  in  favor  of  innocence 
or  any  leanings  in  mitiori  sensu  in  the  bloodthirsty  and 
infamous  Jeffries;  nor  could  we,  while  reading  and  con- 
sidering their  legal  opinions,  forget  either  the  low  breeding 
and  meanness  of  Saunders,  the  ardent  temperament  of 
Buller,  the  dissolute  habits,  ferocity  and  profaneness 
of  Thurlow;  or  the  intellectual  greatness  and  integrity  of 
Hobart,  the  sublimated  piety  and  enlightened  conscience 
of  Hale,  the  originality  and  genius  of  Holt,  the  elegant 
manners  and  varied  learning  of  Mansfield,  or  the  conserva- 
tive principles,  the  lofty  tone  of  morals,  and  vast  compre- 
hension of  Marshall. 

"Neither  should  we  expect  a  decision  leaning  in  favor 
of  the  liberty  of  the  subject  from  the  Star  Chamber;  nor 
against  the  King's  prerogative  among  the  judges  in  the 
reigns  of  the  Tudors  or  of  James  the  First ;  nor  should  we, 
on  this  side  of  the  water,  resort  to  the  decisions  in  West- 
minster Hall  to  learn  the  true  extent  of  the  Admiralty  juris- 
diction which  the  English  Common  Law  Courts  have  been 
always  disposed  to  curtail  and  in  many  points  to  deny; 
while  it  is  so  clearly  expounded  in  the  masterly  judgments 
of  Lord  Stowell,  and  of  his  no  less  distinguished  and  yet 
living  American  contemporary  (Storj^)." 


56o  A  HISTORY  OF  THE  AMERICAN  BAR 

And  that  a  knowledge  of  contemporary  history,  and 
economic,  political  and  social  conditions  is  necessary, 
both  in  the  decision  and  in  the  study  of  cases,  has  been 
well  pointed  out  by  Judge  Simeon  E.  Baldwin  in  an  article 
in  History  of  the  Common  Law: 

"The  judge  cannot  shut  his  eye  to  the  history  and  spirit 
of  the  day  and  time  in  which  and  for  which  he  speaks.  The 
history  of  the  Anglo-American  Common  Law  is  very  far 
from  being  a  mere  history  of  judicial  precedent.  It  is 
rather  a  history  of  public  custom.  No  collection  of  prece- 
dents could  ever  be  answerable  to  the  wants  of  a  civilized 
community.  The  only  collection  to  satisfy  them  must  be 
one  of  the  principles  of  justice  and  incidents  of  history 
from  which  those  precedents  were  derived." 

And,  as  Oliver  Wendell  Holmes,  Jr.,  said  in  The  Common 
Law: 

"The  life  of  the  law  has  not  been  logic;  it  has  been  experi- 
ence. The  felt  necessities  of  the  times,  the  prevalent  moral 
and  poUtical  theories,  intuitions  of  public  policy,  avowed 
or  unconscious  —  even  the  prejudices  which  judges  share 
with  their  fellow-men,  have  had  a  good  deal  more  to  do 
than  the  syllogism  in  determining  the  rules  by  which  men 
should  be  governed.  The  law  embodies  the  story  of  a 
nation's  development  through  many  centuries.  ...  In 
order  to  know  what  it  is,  we  must  know  what  it  has  been, 
and  what  it  tends  to  become.  We  must  alternately  consult 
history  and  existing  theories  of  legislation.  .  .  .  The  sub- 
stance of  the  law  at  any  given  time  pretty  nearly  corres- 
ponds, so  far  as  it  goes,  with  what  is  then  understood  to 
be  convenient.  .  .  .  The  very  considerations  which  judges 
most  rarely  mention,  and  always  with  an  apology,  are  the 
secret  root  from  which  the  law  draws  all  the  juices  of  life. 
I  mean,  of  course,  considerations  of  what  is  expedient  for 
the  community  concerned.  Every  important  principle 
which  is  developed  by  litigation  is  in  fact  and  at  bottom 
the  result  of  more  or  less  definitely  understood  views  of 
public  policy;  most  generally,  to  be  sure,  under  our  prac- 


AMERICAN  LAW  BOOKS,  1815-1910  561 

tices  and  traditions,  the  unconscious  result  of  instinctive 
preferences  and  inarticulate  convictions,  but  none  the  less 
traceable  to  views  of  public  policy  in  the  last  analysis." 

In  reviewing  the  history  of  the  development  of  the  Amer- 
ican Bar,  one  cannot  fail  to  be  impressed  with  the  fact 
that  the  lawyers  and  the  judges  who  have  left  their  mark 
on  the  law  have  been  those  who  were  sensitive  to  the  pro- 
gressive thought  of  their  time,  and  keenly  perceptive  of  the 
trend  of  economic  and  social  conditions.  "Reasons  of 
pubUc  benefit  and  convenience  weigh  greatly  with  me," 
said  Lord  Hardwicke,  in  Lawton  v.  Lawton  (3  Atkins,  16) 
in  1743;  '*In  considering  the  rights  and  obligations  arising 
out  of  particular  relations,  it  is  competent  for  courts  of 
justice  to  regard  considerations  of  policy  and  public  con- 
venience, and  to  draw  from  them  such  rules  as  will  in  their 
practical  application  best  promote  the  safety  and  security 
of  all  parties  concerned,"  said  Chief  Justice  Shaw,  in  Far- 
well  V.  Boston  mid  Worcester  R.  R.  (4  Metcalf,  49),  in  1842. 

On  the  other  hand,  nothing  can  tend  more  to  destroy 
the  influence  of  the  ministers  of  justice  than  argument  or 
decision  in  which  principle  is  subordinated  to  demands  of 
policy  or  popular  whim.  The  impressive  words  of  Lord 
Chief  Justice  Scroggs  in  an  address  to  the  jury,  in  1679 
(16  Howell's  State  Trials,  242)  are  still  full  of  warning:  "If 
once  our  courts  of  justice  come  to  be  awed  or  swayed  by 
vulgar  noise,  and  if  judges  and  juries  should  manage  them- 
selves so  as  would  best  comply  with  the  humor  of  the 
times,  it  is  falsely  said  that  men  are  tried  for  their  lives  or 
for  times;  they  live  by  chance,  and  enjoy  what  they  have, 
as  the  wind  blows,  and  with  the  same  certainty."  "Pu^>- 
lic  policy  is  a  very  unruly  horse,  and  when  once  you  get 
astride  it  you  never  know  where  it  will  carry  you,"  said 
Judge  Burrough,  in  1824,  in  RicJiardson  v.  Mellish  (2  Bing- 
ham, 252). 


562  A  HISTORY  OF  THE  AMERICAN  BAR 

The  great  lawyer  and  the  great  judge  —  so  history  wdll 
show  —  is  he  who  is  progressively  sympathetic  with  the 
public  needs,  but  not  submissive  to  the  popular  demands. 

This  book,  therefore,  has  been  written  with  the  design 
of  illustrating  a  few  of  the  factors  which  have  produced 
the  American  law  of  to-day,  and  which  have  made  its 
history  a  glorious  one.  Hence,  it  is  fitting  that  the  last 
fact  to  be  recorded  should  be  the  foundation  of  the  American 
Bar  Association,  in  1878,  the  work  and  influence  of  which 
has  done  much  to  place  the  American  lawyer  of  to-day  in 
the  position  where,  using  the  words  of  old  Cotton  Mather, 
written  two  hundred  years  ago:  "You  may,  Gentlemen, 
if  you  please,  be  a  Vast  Accession  to  the  FeHcity  of  your 
Countreys." 


APPENDIX 

The  following  is  the  earliest  plan  ever  drafted  for  an 
American  professorship  of  law.  It  is  the  work  of  President 
Ezra  Stiles,  of  Yale  College,  in  1777,  and  is  here  reproduced 
from  the  original  manuscript  now  in  the  Yale  University 
Library: 

"  The  Professorship  of  Law  is  equally  important  with  that  of 
Medicine;  not  indeed  towards  educating  La^vye^s  or  Barristers, 
but  for  forming  Civilians.  Fewer  than  a  quarter  perhaps  of  the 
young  gentlemen  educated  at  College,  enter  into  either  of  the 
learned  professions  of  Divinity,  Law  or  Physic:  The  greater 
part  of  them  after  finishing  the  academic  Course  return  home, 
mix  in  with  the  body  of  the  public,  and  enter  upon  Commerce 
or  the  cultivation  of  their  Estates.  And  yet  perhaps  the  most 
of  them  in  the  Course  of  their  Lifes  are  called  forth  by  their 
Country  into  some  or  other  of  the  various  Branches  of  civil 
Inprovement  &  the  public  oflfices  in  the  State.  Most  certainly 
it  is  worthy  of  great  attention,  the  Discipline  and  Education 
of  these  in  that  knowledge  which  shall  qualify  them  to  become 
useful  Members  of  Society,  as  Selectmen,  Justices  of  Peace, 
Members  of  the  Legislature,  Judges  of  Courts,  &  Delegates 
in  Congress.  How  happy  for  a  community  to  abovmd  with 
men  well  instituted  in  the  knowledge  of  their  Rights  &  Liber- 
ties? This  Knowledge  is  catching,  &  insinuates  [among  those] 
not  of  liberal  Education  —  to  fit  them  for  public  service.  It 
is  greatly  owing  to  the  Seats  of  Learning  among  us  that  the 
arduous  Conflict  of  the  present  day  has  found  America  abun- 
dantly furnished  with  Men  adequate  to  the  great  and  momen- 
tous Work  of  constructing  new  Policies  or  forms  of  Government 
and  conducting  the  public  arrangements  in  the  military,  naval 
&  political  Departments  &  the  whole  public  administra- 
tion of  the  Republic  of  the  United  States,  \\'ith  that  Wisdom 
&  JMagnanimity  which  already  astonishes  Europe  and  will  honor 


564  APPENDIX 

us  to  late  Posterity.  We  are  enlarging  into  still  greater  Systems, 
in  which  we  may  transplant  the  Wisdom  of  all  Countries  & 
Ages.  It  is  in  this  view  chiefly,  &  principally  for  this  end,  that 
the  several  States  may  see  the  Expediency  of  endowing  Pro- 
fessorships of  Law  in  the  Colleges.  It  is  scarce  possible  to  en- 
slave a  Republic  of  Civilians,  well  instructed  in  their  Laws, 
Rights  &  Liberties.  The  Lectures  of  a  Professorship  of  Law 
may  be  resolved  into  four  series. 

I.  The  civil  Law.  It  will  be  necessary  to  exhibit  an  idea 
of  the  antient  Roman  Law  in  its  purest  State  under  the  Senate, 
before  the  period  of  the  Caesars,  &  previous  to  the  mutations 
which  the  Jus  civile  received  by  the  imperatorial  Edicts:  then 
to  take  a  view  of  the  imperatorial  Law  down  to  the  Times  of 
Justinian.  Then  instead  of  attending  to  the  mutations  it  as- 
sumed by  being  blended  with  the  local  Laws  of  the  Roman 
Conquests,  the  Provinces  —  instead  of  considering  how  much 
of  it  is  still  preserved  in  the  Jurisprudence  of  Poland,  Germany, 
Holland,  France,  Spain  or  Italy  —  go  directly  to  England  and 
consider  how  much  of  the  Jus  civile  entered  into  the  Jurispru- 
dence of  England,  for  the  greatest  part  of  the  Jurisprudence  of 
America  has  been  adopted  from  England.  Three  Streams  of 
the  imperial  Law  entered  England  &  obtaines  there  with  Efficacy 
to  this  day.  The  first  is  the  canon  or  ecclesiastical  Law,  which 
it  is  hoped  will  never  enter  America;  the  second  testamentary 
law;  the  third  the  maritime  Law  in  Admiralty  Courts.  This 
last  is  of  great  importance,  for  the  Laws  of  Rhodes  &  Oleron. 
The  whole  system  of  Maritime  Law  will  probably  be  adopted 
by  these  States,  under  the  Improvement  of  a  Jury  for  Trials  in 
maritime  Courts.  This  is  all  of  the  Civil  Law  which  will  be 
ever  necessary  for  Americans  to  study. 

II.  The  second  series  of  Lectures  may  be  upon  the  Common 
Law  of  England.  For  although  neither  this  nor  any  other 
foreign  Law  will  ever  be  in  force  in  America  by  any  Authority 
or  Jurisdiction  on  the  other  side  the  Atlantic,  it  will  however 
prevail  by  derivative  use,  Custom  &  Adoption.  It  will  be  of 
particular  Utility  to  exhibit  a  Lecture  of  Negatives,  i.  e.,  a 
number  of  capital  Things  of  the  common  Law  of  England 
which  never  could  be,  nor  ever  was  introduced  here  —  &  so  to 
draw  the  Line  —  leaving  all  the  rest  as  the  common  Law  Sys- 
tem of  these  States.    Connected  with  this  may  be  a  summary 


APPENDIX  56s 

Representation  of  the  Statute  Law,  both  those  designedly 
made  by  Parliament  for  the  Colonies  which  are  henceforth 
forever  abolished,  &  those  adopted  by  the  American  Legisla- 
tures: and  tho'  many  of  these  will  be  repealed,  yet  the  greater 
part  may  remain  in  the  Jurisprudence  of  the  United  States. 
As  Justinian's  Institutes  may  be  the  Textual  Book  for  the 
Cix-il:  so  Hale's  Analysis  &c  may  be  for  the  common  Law. 

III.  The  Subject  of  the  third  Series  will  be  the  Codes  of 
the  thirteen  States.  The  Professor  will  exhibit  the  Spirit  & 
Governing  Principles  of  each  Code.  Connected  with  this  will 
be  a  particular  Representation  of  the  Jurisprudence  of  Connecti- 
cut, the  Courts  &  their  Jurisdictions,  and  as  much  of  the  Course 
of  Practice  as  is  founded  in  principle,  and  not  merely  officinal, 
for  this  is  best  learned  at  the  Bar  &  by  living  with  a  Lawyer, 
Degrees  to  be  taken. 

IV.  The  last  Series  may  consist  of  Lectures  exhibiting  the 
Policies  and  Forms  of  Government  of  all  the  Kingdoms,  Em- 
pires &  Republics  in  the  World,  especially  those  of  Europe  & 
that  of  China  —  which  last  is  perhaps  the  best  formed  Policy  on 
Earth,  as  it  alone  combines  one-third  of  the  whole  human  race. 
The  Nature  &  Wisdom  of  such  a  Policy  is  worthy  the  peculiar 
Attention  of  the  infant  Empire  in  America,  growing  into  a 
future  Greatness  &  Glory  surpassing  perhaps  what  have  ever 
appeared.  And  as  we  shall  transplant  all  the  Improvement  in 
Knowledge,  Manufactures  &  Commerce  from  all  Countries,  so 
by  a  thorough  Knowledge  of  the  fundamental  Principles  of  their 
respective  public  Politics,  we  may  learn  how  to  distinguish  & 
avoid  Precedents  dangerous  to  Liberty.  Summary  Represen- 
tations of  the  Spirit  of  the  Laws  &  Jurisprudence  of  each  &  all 
the  Kingdoms  &  States  will  shew  us  what,  having  endured  the 
Trial  of  Ages,  will  be  worthy  of  Adoption  by  the  American 
Legislatures.  All  this  will  lay  a  Foundation  for  the  accurate 
Knowledge  of  the  Laws  of  Nations  —  Laws  of  mutual  Intercourse 
&  political  Transactions  between  separate  Sovereignties  & 
Independent  States,  a  Branch  of  Knowledge  necessary  to  regu- 
late the  Intercourse  between  these  States,  as  well  as  the  negoti- 
ations with  European  &  other  foreign  Powers.  This  will  enable 
such  a  multitude  of  Gentlemen  among  the  body  of  people  at 
large  to  judge  on  political  matters,  as  shall  owe  those  into 
Fidelity  whom  the  States  may  entrust  with  public  &  important 


566  APPENDIX 

negotiations.  This  political  Knowledge  diflfused  through  a 
State,  "^tII  establish  its  Liberty,  Security  &  Aggrandizement  too 
firmly  to  be  overturned  by  either  a  military  power  or  those 
insidious  Arts  &  Corrupt  measures,  which  in  conjunction  with 
Arms  have  at  length  in  all  countries  prostrated  the  Rights  of 
mankind,  in  a  general  ruin.  The  cultivation  of  this  political 
Knowledge  &  Wisdom  will  tranfuse  a  spirit  among  the  body  of 
the  people  in  America  [which]  will  be  the  only  security  of  their 
Liberty  under  Providence,  &  tend  to  efifect  that  public  Virtue 
&  produce  those  wise  Institutions  which  may  advance  the 
United  States  to  the  Summit  of  political  Perfection  &  Honor." 


INDEX 


[Note.    Law  cases  and  titles  (in  condensed  form)  of  law  books  are  printed  in  italics.) 


Ableman  v.  Booth,  441. 

Accident  Law,  449-450. 

Adams,  John,  83;  on  Hutchinson, 
77;  as  to  law  profession,  79-80;  on 
admission  to  Bar,  82,  84;  on 
study  of  law,  79,  83;  on  barristers, 
87;  as  to  scarcity  of  law  books, 
163;  course  of  law  study,  171- 
173;  description  of  Bar  meetings, 
203;  opinion  of  Marshall,  252 
note;  Feudal  and  Common  Law, 
334- 

Adams,  John  Quincy,  318;  views 
of  Coke,  177;  legal  education  of, 
181;  on  prejudices  against  law- 
yers, 220;  as  to  Judge  Chase,  230; 
in  early  Supreme  Court,  261,  263; 
argues  Fletcher  v.  Peck,  270; 
opinion  of  legality  of  embargo 
act,  277  note;  as  to  Federal  Bar 
in  181 7,  366;  opinion  of  Pinkney, 
382;  on  law  logic,  328  note; 
opinion  of  Marshall,  421;  argues 
V.  S.  V.  Amistad,  429-430;  views 
of  Prigg  case,  431  note. 

Adams,  Samuel,  82. 

Addington,  Isaac,  75. 

Addison's  Reports,  330. 

Admiralty  Law,  early  English  books 
on,  34  note;  in  United  States,  279. 

Alabama,  first  law  reports,  366; 
Federal  bar  of,  412. 

Alexander,  James,  95. 

Allen,  William,  104. 


Alvord,  James  O.,  531. 

Ambler,  John,  46. 

American  Bar  Association,  founded, 
562. 

American  Digest,  Century  Edition, 
557- 

American  and  English  Encyclopcedia 
of  Law,  557. 

American  Jurist,  547. 

American  Law  Journal,  339. 

A  merican  Law  Magazine,  548. 

American  Law  Register,  547. 

American  Law  Review,  548. 

American  Literature  before  1830, 
461  note. 

American  Magazines,  between  1815 
and  i860,  461  note. 

American  Precedents  of  Declarations, 
332,  ZiZ- 

Ames,  Fisher,  109;  letter  as  to  Bos- 
ton Bar,  308. 

Ames,  Samuel,  411,  436,  437;  Cor- 
porations,  546. 

Amory,  Rufus  G.,  262. 

Andrews,  John,  142. 

Angell,  Joseph  K.,  Watercourses, 
541;  Corporation,  546;  Carriers, 
547- 

Annual  Law  Register,  547. 

Anthon,  John,  304;  American  Prec- 
edents, 333. 

Aplin,  John,  142. 

Arkansas,  first  law  reports,  408;  Fed- 
eral bar  of,  412. 

Armory  v.  Delamire,  147. 

Arnold,  Oliver,  143. 


S68 


INDEX 


Ashmun,  Eli  P.,  318. 

Ashmun,  George,  439. 

Ashmun,  John  H.,  529. 

Assheton,  Robert,  107. 

Assheton,  William,  108. 

Atkinson,  Theodore,  134. 

Atkinson,  William  K.,  320. 

Attorneys-General  of  United  States, 
263,  367,  444- 

Attorneys,  see  Lawyers. 

Atwood,  William,  92. 

Auchmuty,  Robert,  76,  78. 

Austin,  Benjamin,  attack  on  law- 
yers by,  219,  228. 

Austin,  James  T.,  409,  429,  469. 

Avery,  William,  123. 

Azuni,  335- 

B 

Babcock,  Joshua,  141. 

Bacon,  Francis,  Common  Law,  34; 

plans  a  code,  513. 
Bacon,  Matthew,  Abridgment,  150. 
Badger,  George  E.,  413. 
Baker,  Edward  D.,  410. 
Baldwin,  Abraham,  126. 
Baldwn,  Henry,  401,  444. 
Baldwin,  Simeon,  323. 
Bancroft,     George,    description    of 

Marshall,  416. 
Bank    of   Augusta    v.    Earle,    429; 

description  of,  500-505. 
Bank  of  Columbia  v.  Patterson  Admr., 

287. 
Bank  of  North  America  v.  Vardon, 

285. 
Bank  of  U.  S.  v.  Dandridge,  account 

of,  399-400. 
Bank  of  U.  S.  v.  Deveaux,  505. 
Bankruptcy,  law  of,  463-466;    Su- 
preme Court  decisions  as  to,  377- 

379,  398. 

Bar,  genial  relations  of,  84-85,  203- 
207;  rules  for  admission  to,  201- 
203;  Suffolk  Coimty  records  of, 
83-85,  88,  196-200.  See  also 
Federal  Bar  and  Lawyers. 

Bar  Associations,  in  Massachusetts, 
83,  88;  in  New  York,  98,  201;  in 


New  Jersey,  113;  in  New  Hamp- 
shire, 138-139;  in  Rhode  Island, 
142;  Suffolk  Coimty  records,  196- 
200;  New  Hampshire  regulations, 
200;  Connecticut,  201;  first  in 
Connecticut,  322;  prejudices 
against,  510-51 1. 

Barbour,  Philip  P.,  383,  443. 

Barker,  Thomas,  123. 

Barradale,  Edward,  46. 

Barristers,  in  England,  28-30;  in 
Massachusetts,  85-88;  in  New 
Jersey,  113;  American  lawyers 
as,  188-189;  appointments  of  in 
U.  S.  Circuit  Court,  243;  last  in 
Massachusetts,   307. 

Bartlett,  Ichabod,  320. 

Bartlett,  Josiah,  135. 

Bartlett,  Sidney,  408. 

Batture  Case,  271-274. 

Bayard,  James  A.,  246,  261. 

Bay's  Reports,  330.  : 

Bayley,  John,  Bills  and  Notes,  150. 

Beach,  Charles  F.,  Monopolies,  555. 

Beale,  Joseph  H.,  Railroad  Rate 
Regidation,  556. 

Beardsley,  Samuel,  409. 

Bdl  V.  Locke,  462. 

BeUingham,  Richard,  59. 

Bemis,  George,  471. 

Benjamin,  Judah  P.,  412. 

Benson,  Egbert,  293,  297. 

Bentham,  Jeremy,  description  of  his 
life  and  works,  513-518;  Legis- 
lation Civil  and  Criminal,  514; 
Judicial  Evidence,  515;  Codifi- 
cation, 515. 

Benton,  Thomas  H.,  370,  411. 

Berrien,  John  M.,  370,  396,  410. 

Bibb,  George  M.,  262,  410. 

Bibb's  Reports,  330. 

Bigelow,  George  T.,  451,  471. 

Bigelow,  Melville  M.,  Estoppel,  551; 
Fraud,  553. 

Bigelow,  Timothy,  318. 

Binney,  Horace,  262;  description  of 
effect  of  embargo  on  lawyers,  278, 
410,  414;  in  Vidal  v.  Phil,  433- 
435- 


INDEX 


569 


Binney's  Reports,  330. 

Bishop,    Joel    P.,  Married    Women, 

471;    Criminal  Law,  546. 
Black,  Jeremiah  S.,  444. 
Blackford,  Isaac  N.,  447. 
Blackslone's       Commentaries,      150, 

177-179. 
Blackstone,  William,  150,  177  note. 
Blair,  John,  47,  242,  251. 
Blair,  Montgomery,  441. 
Blake,  George,  318,  368. 
Bliss,  Philemon,  Codes,  553. 
Blowers,  Sampson  S.,  83. 
Body  of  Liberties,  64-65. 
Bohun,    William,     Institutio,     150; 

Declarations,  150. 
Bollan,  William,  82. 
Booth,  A.,  Examen,  34. 
Bordley,  Stephen,  54. 
Bordley,  Thomas,  54. 
Boston  Glass  Mfg.  Co.  v.  Binney,  470. 
Botsford,  Amos,  134. 
Botts,  Benjamin,  268. 
Bouvier,  John,  Law  Dictionary,  546. 
Boyce  v.  Anderson,  397. 
Brackenridge,  Henry  N.,  Law  Mis- 
cellanies, 336. 
Bracton,  Henry,  Laws  of  England, 
32. 

Bradbury,  Theophilus,  83,  139. 

Bradford,  Alexander,  533. 

Bradford,  William,  246,  250. 

Bradford's  Case,  236. 

Bradley,  Joseph  H.,  410. 

Bradley,  Joseph  P.,  413. 

Bradley,  Stephen  R.,  322. 

Bradley,  James,  Distress,  337. 

Bradstreet,  Simon,  59. 

Branch,  Thomas,  Principia,  156. 

Breese,  Sidney,  410. 

Brent,  ^Mrs.  Margaret,  52. 

Brent,  Robert  J.,  410. 

Bridges,  John,  92. 

Briscoe  v.  Bank,  422. 

Britton,  John,  Abridgment,  32. 

Branson  v.  Kinzie,  432. 

Brooke,  Sir  Robert,  Abridgment,  33. 

Brown  v.  Maryland,  398. 

Brown  v.  iV.  V.  Gaslight  Co.,  452 


Brown    College,    law  professorship, 

349- 
Browne,  Causten,  Statute  of  Frauds, 

547- 

Browning,  Orville  H.,  410. 

Brownlow,  Richard,  Declarations,  34. 

Bull,  Henry,  142. 

Bullivant,  Benjamin,  72. 

Bump,  Orlando  F.,  Fraudulent  Con- 
veyances, 552. 

Burges,  Tristam,  143. 

Burke,  Aedanus,  122. 

Burke,  Edmund,  views  of  American 
knowledge  of  law,  180. 

Burr,  Aaron,  298;  description  of  by 
Kent,  296;  trial  of,  267-269. 

Burrill,  James,  143. 

Butler,  Benjamin  F.,  409,  444,  524. 

Bynkershoek's  Laws  of  War,  335. 

Byrd,  William,  45;  law  library  of, 
162. 


Cady,  Daniel,  304. 
Caines,  George,  294,  331. 
Caines'  Reports,  331. 
Calhoun,  John  C,  413- 
California,  first  law  reports,  40S. 
Call,  Daniel,  261. 
Call's  Reports,  330. 
Calye's  Case,  19. 
Campbell,  Alexander,  248. 
Campbell,    James,    411,    440,    458, 

459- 
Campbell,  John  A.,  412,  444. 
Campbell,  Lord,  on  legal  education, 

153-155;  on  common  law  in  i8th 

century,     147-148;      opinion     of 

Coke,  175  note. 
Care,  Henry,  English  Liberties,  34. 
Carr,  Dabney,  47. 
Carrington,  Paul,  47. 
Carroll,  Charles,  54;    letters  as  to 

Inns  of  Court  Education,  191-194. 
Carroll,  Charles,  of  CarroUton,  56. 
Case  Books,  556-557. 
Catron,  John,  370,  443. 
Cauther,  James,  51. 
Chalmers,  George,  56. 


570 


INDEX 


Chancery  Reports,  in  England,  17th 
century,  36-38;  i8th  century,  149. 

Channing,  William,  143. 

Chapman,  Reuben  A.,  537. 

Charles  River  Bridge  v.  Warren 
Bridge,  account  of,  423-426,  478. 

Charlton,  John,  123. 

Chase,  Salmon  P.,  411,  437,  459; 
Revision  of  Ohio  Statutes,  531. 

Chase,  Samuel,  56;  decision  on 
Federal  common  law,  229-230; 
impeachment  trial,  267,  291. 

Chauncey,  Charles,  134. 

Checkley,  Anthony,  73,  74. 

Cherokee  Nation  v.  Georgia,  ac- 
count of,  414. 

Cliesley's  Case,  236. 

Chew,  Benjamin,  104,  no. 

Chief  Justice,  in  States  who  devel- 
veloped  the  common  law,  447- 
448;  in  Colonies,  see  separate 
Colonies,  courts  in. 

Chipman,  Daniel,  Contracts,  542. 

Chipman,  Nathaniel,  Dissertations, 
336;   as  law  professor,  356. 

Chipmati's  Reports,  330. 

Chisholm  v.  Georgia,  247. 

Chitty,  Joseph,  Bills  and  Notes,  150. 

Choate,  Rufus,  409;  description  of 
Marbury  v.  Madison,  264;  de- 
scription of  Dartmouth  College 
case,  374,  436,  439;  in  Goodyear 
case,  458. 

Circuit  Courts  of  United  States,  241, 
244-245;  imder  1801  statute, 
252-253;  imder  1802  statute,  253; 
imder  1869  statute,  445. 

Circuit  Court  of  Appeals,  445. 

Civil  Law  Books,  early  American 
translations  of,  335. 

Claggett,  Wiseman,  138. 

Clark,  Thomas,  107. 

Clay,  Henry,  262;  "as  law  professor, 
353,  370;    in  Bank  case,  396;    in 
Ogden  V.  Saunders,  398,  410,  422, 
429;  death,  413. 

Clayton,  John,  45. 

Clemens,  G.  C,  Corporate  Securi- 
ties, 552. 


Gierke's  Praxis,  335. 

Clifford,  John  H.,  409,  438. 

Clifford,  Nathan,  444. 

Clinton,  De  Witt,  304. 

Clinton,  George,  98. 

Cobb,  Thomas  R.  R.,  Slavery,  547. 

Codes,  in  New  York,  524-525;  in 
England,  526;  in  Pennsylvania, 
528;  in  Massachusetts,  528-531, 
534,  536-538;  in  New  York,  531- 
533,  535-536;  in  other  States,  539 
note. 

Code  Napoleon,  508,  512,  513,  520, 

527- 
Codification,  agitation  for  in  United 

States,  517-528. 

Coffin,  Peter,  134. 

Coggs  V.  Barnard,  146. 

Cogley,  Thomas  S.,  Strikes,  555. 

Cohens  v.  Virginia,  383-385. 

Coke,  Sir  Edward,  advice  as  to 
study  of  law,  31;  Institutes;  El- 
don's  opinion  of,  174-175;  Camp- 
bell's opinion,  175  note;  study  of, 
by  American  lawyers,  1 71-178. 

Colden,  CD.,  304. 

Coleman's  Reports,  331. 

Colleges,  education  of  colonial  law- 
yers in,  18,  194-195. 

College  of  Philadelphia,  law  pro- 
fessorship, 346-349. 

Colonial  statutes,  publication  of,  161. 

Columbia  College,  law  professor- 
ship, 349-352. 

Commerce  Court,  445. 

Common  law,  in  Colonies,  10-15;  in 
Virginia,  39;  in  Maryland,  49- 
50;  in  Massachusetts,  60-66;  in 
New  York,  90-91;  in  Pennsyl- 
vania, 102-103;  in  South  Caro- 
lina, 120;  in  Connecticut,  12-13; 
in  Rhode  Island,  13,  140-141; 
in  England  in  i8th  century,  147- 
148;  binding  in  new  States,  225; 
prejudices  against,  225-239,  508- 
512;  in  Federal  Courts,  228-231; 
development  of  American,  446- 
448. 

Com.  V.  Carlisle,  469. 


INDEX 


571 


Com.  V.  Clap,  238. 

Com.  V.  Freeman,  237. 

Com.  V.  Hunt,  469. 

Cow.  V.  Rogers,  471. 

C(W».  V.  Temple,  452. 

Comyns,  John,  D/gw/,  150. 

Conflict  of  Laws,  first  books  on,  545, 

SSI- 
Connecticut,   colonial   bar  in,    130- 

134;  courts  in,  129;  rules  for  ad- 
mission of  lawyers,  201;  early  State 
bar,  322-323;  first  bar  associa- 
tion in,  322;  first  law  reports  in, 
328-329. 

Conrad,  Charles  M.,  412. 

Conspiracy,  first  statute  in  England 
as  to  lawyers,  24. 

Contracts,  early  American  books  on, 

542. 

Cook,  William  W.,  Stockholders,  554. 

Cooley,  Thomas  M.,  Constitutional 
Limitations,  554. 

Cooley  V.  Port  Warderis,  439. 

Cooper,  Thomas,  Bankrupt  Law, 
336;  as  law  professor,  364. 

Copyright,  law  of,  460-461. 

Cord,  William  H.,  Married  Women, 
471. 

Corporations,  first  book  on,  in  Eng- 
land, 34;  early  law  in  United 
States,  284-288;  development 
after  1815  of  law  of,  492-507. 

Cotton,  John,  63. 

Covington  Drawbridge  Co.  v.  Shep- 
herd, 506. 

Cowell,  John,  Institutes,  Interpreter, 
Dictionary,  33. 

Cowell,  Gideon,  140. 

Coxe,  Richard  S.,  368,  409. 

Coxe's  Reports,  330. 

Craig  V.  Missouri,  400,  423. 

Cranch,  William,  331. 

Crawford,  William  H.,  410,  502. 

Criminal  Law,  insanity  in,  471. 

Crittenden,  John  J.,  410,  437,  444. 

Cumber  v.  Warn,  147. 

Cummings,  William,  123. 

Curtis,  Benjamin,  R.  409;  opinion 
of  Taney,  421-422;  443,  444,  537- 


Curtis,  George  T.,  441. 

Curwin,  Jonathan,  74. 

Cushing,  Caleb,  408;  views  of  early 

Supreme    Court,    251;    444;     his 

Pothier,  541. 
Cushing,  Luther  S.,  530,  531. 
Cushing,  William,  75,  83,  139,  242, 

244  note,  272. 
Cyclopedia   of  Law   and   Procedure, 

SSI- 

D 

Daggett,  David,  323;  as  law  profes- 
sor, 364,  378,  463. 

Dallas,  Alexander  J.,  245,  247,  250, 
256,  257,  279,  280;  defence  of 
common  law,  233  note;  his 
Reports,  330. 

Dallas,  George  M.,  411,  440. 

Dalton,  Michael,  Justice,  33. 

Damages,  first  book  on,  546. 

Dana,  Francis,  83,  237. 

Dana,  Richard,  82. 

Dana,  Richard  H.,  Jr.,  409,  432; 
description  of  legal  practice  in 
Massachusetts,  207. 

Dana,  Samuel,  Jr.,  318. 

Dane,  Nathan,  528;  Abridgment,  540. 

Daniel,  Peter  L.,  443. 

Daniels,  John  W.,  Negotiable  In- 
struments, 552. 

Dartmouth  College,  law  professor- 
ship, 355- 

Dartmouth  College  v.  Woodward, 
account  of,  372-377;  place  in 
American  jurisprudence,  432-433; 
influence  of  on  legislation,  499. 

Davie,  Wilham  R.,  125;  opinion  of 
judiciary  act,  241. 

Daveis,  Charles  G.,  413. 

Davis,  Daniel,  318,  262. 

Davis,  John,  409,  423,  424,  436,  439, 
528. 

Dawson,  John,  123. 

Day,  Thomas,  323. 

Dayton,  William  L.,  413. 

Death,  liability  statutes  for,  449. 

Debtors,  increasing  protection  to, 
by  law  from  1830  to  i860, 463-469. 


572 


INDEX 


Delaware,  rules  for  admission  of 
lawj^ers,  202;   Federal  bar  of,  246. 

De  Lancey,  James,  92. 

De  Lovio  v.  Boit,  280. 

De  Peyster,  Abraham,  92. 

De  Saussure,  Hemy  W.,  291. 

De  Tocqueville,  Alexis,  on  lawyers, 
222,  512. 

Dexter,  Franklin,  319,  408,  419,  458. 

Dexter,  Samuel,  246,  262,  277;  de- 
scription by  Ticknor,  282-283; 
sketch  of,  309-311,  371. 

Dickerman,  Edward  M.,  409,  459. 

Dickinson,  John,  no. 

Dickinson,  Samuel  F.,  law  school  of, 

365- 
Dillon,  John  F.,  Municipal  Corpor- 
ations, 551;    Removal  of  Causes, 

553- 
District  of  Columbia,  bar  of,  368, 

409. 

District  Courts  of  United  States, 
241. 

Diversity  of  the  Courts,  32. 

Doddridge,  John,  Lawyer,  34. 

Dos  Passos,  B.  F.,  Collateral  Inheri- 
tance, 554. 

Douglas,  Stephen  A.,  410. 

Downing,  Emanuel,  59. 

Drayton,  John,  262,  279. 

Drayton,  William  H.,  122. 

Duane,  James,  98. 

Duane,  William,  attacks  on  lawyers 
by,  221-223. 

Duane,  William  J.,  Law  of  Nations, 

335- 
Dudley,  John,  136. 
Dudley,  Joseph,  92. 
Dudley,  Paul,  75,  78. 
Dudley,  Thomas,  59. 
Duer,   John,   304;     describes   legal 

conditions  in  New  York,  327,  524. 
Duer,  William  A.,  304;  Constitution, 

545  note. 
Dugdale,  William,  Origines,  34. 
Dulany,  Daniel,  Jr.,  55. 
Dulany,  Daniel,  Sr.,  50,  51,  54. 
Dumpor's  Case,  19. 
Dunce's  Parliament,  25,  70. 


Duponceau,  Peter,  257;  describes 
Pennsylvania  bar  before  early 
Supreme  Court,  256;  279;  de- 
scribes prejudice  against  common 
law,  235;  Law  Academy  founded 
by,  364;  Constitution,  545  note. 

Dutton,  Warren,  423. 

Duvall,  Gabriel,  291,  418. 

Dyer,  Eliphalet,  133. 

E 

Eaton,  John  H.,  360. 

Edwards,  Pierrepont,  323. 

Eldon,  Lord,  education  of,  154-156; 
opinion  of  Coke,  174-175. 

Ellsworth,  Oliver,  129;  legal  educa- 
tion of,  1 70;  drafts  judiciary  act, 
240;  in  England,  250  note. 

Elmsly,  Alexander,  123. 

Elkinson  v.  Deliesseline,  388. 

Ellis  V.  Amer.  Tel.  Co.,  451. 

Embargo,  276-277. 

Emerigon,  335. 

Emery,  Noah,  139. 

Emmet,  Thomas  Addis,  262;  ar- 
gues The  Nereide,  280-284;  sketch 
of,  302-303;  368;  in  steamboat 
case,  393,  397. 

English  language,  law  books  in,  22, 

33,  149- 
Estoppel,  first  book  on,  552. 

Eustis,  George,  412. 

Everett,    Edward,    description    of 

status  of  Supreme  Court,  404-405; 

review  of  Story's  Constitution,  418; 

views  as  to  codes,  523,  530. 
Evidence,  change  in  law  of,  472-474. 
Ewing,  Thomas,  370,  441. 


Fairfax  v.  Hunter,  371. 

Farwell  v.  Boston  6*  Worcester  R.  R., 

449.  485,  561. 

Feame,  Charles,  Remainders,  150. 

Federal  Bar,  first  lawyers  admitted, 
242;  early  Supreme  Court,  245- 
246,  256-262;   between  1815  an  I 


INDEX 


573 


1830,  366-370;  between  1830  and 
i860,  408-413;  description  by 
Sumner  in  1834,  418-419. 

Femvick,  Cuthbcrt,  51. 

Fessenden,  Thomas  G.,  Patents,  337, 

541- 
Fessenden,  William  P.,  413,  432. 
Field,  David  Dudley,  532,  535. 
Finch,  Henry,  Common  Law,  33. 
Fire  Insurance,  early  law  of,  288; 

later  law  of,  455-456- 
Fitch,  Thomas,  131. 
Fitzherbert,    Anthony,    Abridgment, 

32. 
Fitzhugh,  William,  45. 
Fleta,  33. 

Fletcher,  Richard,  409. 
Fletcher  v.  Peck,  269-271,  317. 
Florida,  first  law  reports,  408. 
Fogg  V.  Middlesex  Fire  Ins.  Co.,  455. 
Fonblanque,  John,  Equity,  150. 
Foot,  Samuel  A.,  369. 
Forbes,  Charles  E.,  530. 
Foster,  Michael,  Crown  Pleas,  150. 
Foster,  Roger,  Federal  Practice,  554. 
Fox,  Charles,  410. 
Francis,  Richard,  Maxims,  150. 
Francis,  Tench,  109. 
Freeman,  Abraham  C,  Jtidgments, 

552. 
Freeman,  Samuel,  Probate  Directory, 

336. 
Fulbeck,  William,  Sttidy  of  Law,  31. 
Fundamental  Orders,  128.  , 


Gaillard,  Theodore,  122. 

Gamble,  Hamilton  R.,  411. 

Gardiner,  John,  plans  for  law  re- 
form of,  218. 

Gas,  law  of  accidents  from,  452. 

Gaston,  William,  370. 

Georgia  v.  Brailsford,  250. 

Genesee  Chief,  440. 

Georgia,  colonial  bar  and  courts  in, 
125-126;  first  law  reports,  366; 
Federal  bar  of,  370. 

Gerrish,  John,  134. 


Gcyer,  Henry  S.,  411,  441. 

Gibbcs,  William  H.,  122. 

Gibbons  v.  Ogden,  account  of,  392- 
396. 

Gibson,  John  B.,  447 

Gifford,  Archer,  459. 

Gilbert,  Geoffrey,  Ejectments,  150. 

Gillet,  Ransom  H.,  409,  459. 

Gilpin,  Henry  D.,  412,  429,  444, 
458. 

Glanville,  Ramulf  de,  Laws  of  Eng- 
land, 32. 

Goodyear  v.  Day,  458. 

Goodrich,  Chauncy,  323. 

Goodrich,  Elizur,  as  law  professor, 

354- 
Gordon,  Charles,  56. 
Gordon,  Thomas,  112. 
Gore,  Christopher,  315. 
Georges,  Thomas,  139. 
Gould,  James,  323;  as  law  professor, 

358-361;  Pleading,  546. 
Governors,    Royal,    antagonism    of 

lawyers  to,  8;    in  Maryland,  55; 

in  New  York,  98-101. 
Gray,  John  C,  Restraints  on  Aliena- 
tion, 554. 
Graham,  David,  535. 
Graham,  John,  95. 
Grain  elevators,  law  of,  454. 
Green,  Henry  W.,  447. 
Greene,  Albert  C,  411. 
Greene,  Richard  W.,  411,  436,  437. 
Greenleaf,  Simon,  in  Charles  River 

Bridge   case,    423-425;    530;     his 

Evidence,  546. 
Gridley,   Jeremiah,    81;     advice    to 

Adams  on  study  of  law,  83,  171- 

173- 

Grier,  Robert  C,  444. 

Griffiths,  William,  Annual  Law  Reg- 
ister, 547. 

Griffin,  George,  304. 

Grimke,  John  F.,  122;  Executors, 
336. 

Griswold,  Mathew,  133;  law  library 
of,  162. 

Griswold,  Roger,  261,  323. 

Groves  v.  Slaughter,  429. 


574 


INDEX 


Growdon,  John,  104. 
Grundy,  Felk,  370,  444. 
Guest,  John,  104. 

H 

Haines,  Charles  G.,  369,  398. 

Hall,  Sir  Matthew,  work  of  law  re- 
form, 21,  514;  Pleas,  34;  Common 
Law,  150. 

Hall,  John  E.,  Admiralty,  335. 

Hall,  J.  Prescott,  369,  439. 

Hall,  Willis,  439. 

Hallett,  Benjamin  F.,  438. 

Hamilton,  Alexander,  298;  argues 
People  V.  Croswell,  238;  only  ap- 
pearance in  Supreme  Court,  249. 

Hamilton,  Andrew,  108,  236. 

Hammond,  Charles,  370,  396. 

Hammond,  John,  56. 

Harrison,  Benjamin,  45. 

Hand,  George  E.,  412. 

Hardin,  Benjamin,  370,  422. 

Hardin's  Reports,  330. 

Harding,  George,  459. 

Hare,  Charles  W.,  349. 

Harper,  Robert  Goodloe,  261,  262, 
267,  270,  279,  369,  396. 

Harris  and  McHenry's  Reports,  330. 

Harris,    Thomas,    Modern    Entries, 

Harrison,  Richard,  296. 

Harvard  College  Library,  law  books 

in,  164. 
Harvard  Law  School,  361-364. 
Hastings,  Warren,  trial  of,  47,  267 

note. 
Hawle,  John,  Englishman's  Right,  34. 
Hawkins,    William,    Crown    Pleas, 

150- 
Hawley,  Joseph,  82. 
Hay,   George,   pamphlets   on   libel, 

238;    letter  from  Jefferson,   265; 

at  Burr  trial,  268;  in  Ballure  Case, 

274;  in  Hunter  v.  Martin,  371. 
Hayne,  Robert  Y.,  370. 
Haynes,  John,  128. 
Haywood,  John,  125. 
Haywood's  Reports,  330. 


Head  v.  Provident  Ins.  Co.,  261,  287, 
Heame,  Joseph,  79. 
Henderson,  John,  411. 
Henderson,  John  B.,  458. 
Hendricks,  Thomas  A.,  412. 
Hengham,  Ralph  de,  Register,  ^z. 
Hening,    William     W.,     American 

Pleader,  334. 
Hening  and  Mumford's  Reports,  330. 
Henry,  John  V.,  304. 
Henry,  Patrick,  47;  legal  education 

of,  165,  248. 
Heyward,  Thomas,  122. 
Hicks,  Whitehead,  97. 
High,   James   L.,   Injunctions;   Re- 
ceivers, 552. 
Hillhouse,  James,  246,  323. 
Hillhouse,  James  A.,  133. 
Hilliard,    Francis,    Real    Property, 

546. 
Hinckes,  John,  134. 
Hoar,    George    F.,    description    of 

legal  practice  in  Massachusetts, 

206. 
Hoar,  Samuel,  315. 
Hobart,  John  Sloss,  292. 
Hoffman,  David,   261;    law  school 

of,  356;  369. 
Hoffman,  Josiah  Ogden,   246,   262, 

280,  297. 
Hoffman,  Ogden,  369,  409. 
Hollister  v.  Nowlen,  484. 
Holloway,  John,  46. 
Holly  V.  Boston  Gaslight  Co.,  452. 
Holmes,   Oliver   W.,   Jr.,   Common 

Law,  554. 
Homestead  Laws,  468. 
Honjonan,  James,  Jr.,  142,  143. 
Hooper,  William,  125. 
Hopkinson,  Francis,   no;    Reports, 

330- 

Hopkinson,  Joseph,  267,  369;  in 
College  case,  372-374;  in  Sturgis 
case,  378;  in  McCulloch  case,  379. 

Hopkins,  William,  46. 

Home,  Andrew,  Miroir  des  Justices, 

33- 
Horsmanden,  Daniel,  93. 

Hosmer,  Titus,  133. 


INDEX 


575 


Harvard,  Volney  E.,  411. 

Howe,  Samuel,  318;    law  school  of, 

364- 
Howell,    David,    as    law   professor, 

349- 
Howell,  Jeremiah  B.,  246. 

Hubbard,  Samuel,  465,  470. 

Hubbard,  Leverett,  134. 

Hughes'  Reports,  330. 

Humphreys,  John,  59. 

Hunt,  William  M.,  412. 

Hunter,  William,  261,  368. 

Hunter  v.  Martin,  371. 

Huntingdon,  Jabez  W.,  358. 

Huntingdon,  Samuel,  133. 

Hurd,  John  C,  Slavery,  547. 

Hutchinson,  Thomas,  75-77. 

Hutson,  Richard,  122. 

Eylton  V.  U.  S.,  249. 


Illinois,  first  law  reports,  366; 
Federal  bar  of,  410. 

Imprisonment  for  debt,  law  of,  467. 

Indiana,  first  law  reports,  366; 
Federal  bar  of,  412. 

IngersoU,  Charles  J.,  369;  on  prej- 
udices against  lawyers,  221,  396, 
411,  461,  502;  on  prejudices 
against  common  law,  509-510. 

IngersoU,  Jared,  Sr.,  131. 

IngersoU,  Jared,  Jr.,  245,  247,  249, 
250,  256,  257,  262,  279;  as  to  inns 
of  court  education,  194  note. 

IngersoU,  Joseph  R.,  369,  411. 

Inns  of  Chancery,  28,  67  note. 

Inns  of  Court,  history  of,  27-30;  in 
iSth  century,  150-156;  in  Shake- 
speare, 68  note;  American  lawyers 
at,  188-194. 

Insanity,  as  a  defence,  471. 

Insolvency,  law  of,  463-466. 

Iowa,  first  law  reports,  408. 

Iredell,  James,  124;  legal  education 
of,  173;  a  judge,  242;  opinion  of 
counsel  in  British  debts  case,  248; 
opinion  of  Hamilton's  argument, 
249;  death,  251. 


Jackson,  Charles,  315,  465,  531; 
Real  Actions,  543. 

Jacob,  Stephen,  322. 

Jacobs,  GUes,  Dictionary,  150. 

Jacobseti's  Laws  of  tlie  Sea,  335. 

Jamieson,  David,  95,  112. 

Janin,  Louis,  412. 

Jamagin,  MUton  P.,  Telegraphs,  549. 

Jay,  John,  98,  292;  views  of  Su- 
preme Court,  251. 

Jay,  Peter  A.,  304. 

Jefferson,  Thomas,  47;  legal  edu- 
cation of,  171;  views  as  to  com- 
mon law,  230;  views  on  Marbury 
v.  Madison,  265,  272;  views  of  Burr 
trial,  269;  interest  in  the  Batliire 
case,  271-274;  opinion  of  Levi 
Lincoln,  James  Sullivan  and  Joseph 
Story,  273;  opinion  of  Marshall, 
272,  275  note;  founds  first  coUe- 
giate  law  professorship,  343;  opin- 
ion of  MarshaU,  and  Cohens  case, 

384-385- 
Jenckes,  Thomas  A.,  411. 
Johnson,  Augustus,  143. 
Johnson,  George,  47. 
Johnson,  Reverdy,  410;   in    Brotim 

V.  Maryland,  398;  437,  439,  441, 

444,  458,  459- 
Johnson,  Dr.  Samuel,  advice  on  law 

study,  156. 
Johnson,  Thomas,  56. 
Johnson,  William,    291,    331,    398, 

443- 

Johnson,  WiUiam  S.,  132,  133. 

Jones,  George,  54. 

Jones,  Joel,  528. 

Jones,  Leonard  A.,  Railroad  Securi- 
ties, 552;  Mortgages,  553. 

Jones,  Samuel,  97,  296,  524. 

Jones,  Thomas,  123. 

Jones,  Walter,  261,  368,  371,  379, 
422,  423,  429,  433. 

Jones,  WiUiam,  Bailments,  150. 

Jones  V.  Walker,  248. 

Jones  V.  Van  Zandt,  437. 

Jowlcs,  Henry,  54. 


576 


INDEX 


Judah,  Samuel,  412. 

Judges,  Ignorance  of  Colonial,  8,  9; 
in  England  in  17th  century,  20,  22, 
74;  in  Virginia,  44-45;  in  New 
York,  92;  in  South  Carolina,  120; 
in  Pennsylvania,  104;  in  New 
Jersey,  112;  in  Connecticut,  129; 
in  New  Hampshire,  134-136;  in 
Rhode  Island,  141. 

Judges  of  United  States  Supreme 
Court,  first,  242;  changes  in  early 
years,  251;  additional,  254;  pic- 
ture of ,  in  1815,  281;  changes  in, 
401;  salary  of,  401;  additional, 
443-444;  salary,  445.  See  Su- 
preme Court  of  the  United 
States. 

Judiciary  Act,  240-241;  attempts 
to  change  2Sth  section,  385-387, 

413- 
Justinian's  Institutes,  335. 


Keasbey,  Edward  R.,  Electric  Wires, 

554- 
Keener,  William  A.,  Quasi-Coniracts, 

555- 

Kempe,  John  T.,  97. 

Kent,  Benjamin,  82. 

Kent,  James,  293;  description  of 
17th  century  New  York  bar, 
97;  legal  education  of,  182,  187; 
views  of  early  Supreme  Court,  247; 
description  of  early  New  York 
State  bar  and  Hamilton,  295-300; 
sketch  of,  298;  as  law  professor, 
349-352;  his  Commentaries,  351, 
542-543;  considered  as  Supreme 
Court  judge,  389,  401;  adviser  of 
Cherokees,  414,  524;  sketch  of,  by 
Story,  316. 

Kentucky,  statute  forbidding  Eng- 
lish citations,  232;  bar  of  in  early 
Supreme  Court,  262;  first  law 
reports,  330,  366;  Federal  bar  of, 
370,  410. 

Key,  Francis  S.,  261,  262,  368,  396, 

409- 


Key,  Philip  B.,  261,  267. 

Kilty,  John,  Landholders'  Assistant, 

334- 
Kinsey,  John,  104. 
Kirby,  Ephraim,  328;   his   Reports, 

328-329. 
Kitchen,  John,  Courts,  33. 
Kyd,   Stewart,  Corporations,  284. 


Labor,  law  of,  469-470;    first  law 

book  on,  555. 
Lampleigh  v.  Braithwait,  19. 
Langdell,  Christopher  C,  Contracts, 

S5c>-SSi- 

Langhome,  Josiah,  104. 

Lansing,  John,  293. 

Latrobe,  John  H.  B,,  458. 

Laurens,  John,  122. 

Law,  John,  368. 

Law,  Richard,  133. 

Law  Books,  in  England  in  17th 
century,  32-34;  in  Massachusetts 
in  17  th  century,  71;  in  England  in 
i8th  century,  150;  earliest  printed 
in  Colonies,  157-160;  early  Amer- 
ican, 325-338;  between  1815  and 
and  1910,  540-558. 

Law  Journals,  in  the  United  States, 
338-340. 

Law  Libraries,  in  colonies,  161-164; 
first  in  United  States,  339-340. 

Law  Professorships,  341-365. 

Law  Reporter,  547. 

Law  Reports,  in  England  17th  cen- 
tury, 34-38;  in  colonial  Pennsyl- 
vania, 105;  in  England  iSth 
century,  149;  earliest  printed  in 
colonies,  159-160;  early  American, 
290,  328-332;  views  as  to  increase 
of  from  1800  to  1825,  520-522; 
statistics  of,  557. 

Law  Schools,  early  American,  341- 
365;  between  1830  and  i860,  365 
note. 

Lawrence,  William,  411. 

Lawson,  John  D.,  Usages,  554. 

Lawyers,     reputation    in    England 


INDEX 


577 


in  17th  century,  6;  history  of  rise 
of  in  England,  23-27;  in  Virginia 
colonial,  41,  45-49;  in  Massachu- 
setts colonial,  68-88;  in  New 
York  colonial,  94-101;  in  Penn- 
sylvania colonial,  107-110;  in  New 
Jersey  colonial,  11 2-1 14;  in  South 
Carolina  colonial,  120-122;  in 
North  Carolina  colonial,  123-125; 
in  Connecticut  colonial,  130-134; 
in  New  Hampshire  colonial,  138- 
139;  in  Maine  colonial,  139;  in 
Rhode  Island  colonial,  141-143; 
methods  of  education  of  colonial, 
157-187;  education  in  England  in 
i8th  century,  150-156;  educated 
in  Inns  of  Courts,  188;  rules  for 
admission  of  in  the  various  states, 
196-202;  as  signers  of  the  declar- 
ation, members  of  Federal  Con- 
vention and  first  Congress,  211;  as 
Loyalists,  213;  1785-1800  preju- 
dices against,  214-224;  first  before 
Supreme  Court,  242;  eariy  Su- 
preme Court  bar,  245,  246,  256- 
262;  later  bars,  366-370,  408-413. 
See  Federal  Bar. 

Leading  Cases,  in  17th  century,  19; 
in  i8th  century,  146-147. 

Lechford,  Thomas,  62,  68-69. 

Lee,  Charles,  246,  249,  258,  264,  267, 
268,  279. 

Lee,  Edmund  I.,  369. 

Lee,  Richard  H.,  47. 

Legal  Education,  in  England  in  17th 
century,  30-38;  in  colonial  Vir- 
ginia, 45-46;  in  Massachusetts, 
74-77;  in  New  York,  92;  in 
Pennsylvania,  no;  in  England  in 
iSth  century,  150-156;  in  the 
Colonies  in  general,  157-187;  in 
Inns  of  Court  and  colleges  188- 
195;  in  law  schools,  341-365;  by 
case-books,  556. 

L6gar6,  Hugh  S.,  370,  444. 

Leigh,  Benjamin  W.,  369,  371. 

Leonard,  Daniel,  83. 

Leroy  v.  Tat  ham,  458. 

Lewger,  John,  51. 


Lewis,  John,  47. 
Lewis,  Morgan,  293. 
Lewis,  William,  245,  248,  250. 
Lewis,  William  D.,  Interstate  Com- 
merce, 555- 
Libel,  Early  American  law  of,  236- 

239- 

Life  Insurance,  law  of,  456-457. 

Lilly,  John,  Register,  150. 

Lincoln,  Abraham,  410. 

Lincoln,  Levi,  318,  264;  Jefferson's 
opinion  of,  273. 

Litchfield   Law  School,   357-361. 

Littleton's  Tenures,  32. 

Livermore,  Arthur,  320. 

Livermore,  Edward  St.  Loe,  315. 

Livermore,  Mathew,  138. 

Livermore,  Samuel,  135,  138. 

Livermore,  Samuel,  Agency,  337. 

Livingston,  Brockholst,  291,  296, 
301,  401. 

Livingston,  Edward,  262;  his  Bat- 
lure  Case,  271-274,  297;  in 
Ogden  V.  Saunders,  398;  his  code, 

Sir- 
Livingston,  Robert  R.,  293. 
Livingston,  William,  97;  letter  as  to 

law  students,  167,  524. 
Livingston  v.  Jeferson,  271. 
Livingston  v.  Van  Ingen,  392. 
Lloyd,  David,  104,  107,  108. 
Lockers  Constitutions,  118,  120,  122. 
Logan,  James,  104. 
Lombard,      William,      Archaiomea, 

Eisenachia,  33. 
Loomis,  Arphaxed,  535. 
Loomis  V.  Eagle  Life  etc.  Ins.  Co., 

456. 
Lopus  V.  Chandelor,  19. 
Lord,  Daniel,    409;     description    of 

argument  of  early  New  York  bars, 

301    note;    description  of  Gibbons 

V.  Ogden,  394  note. 
Lord,  N.  J.,  537. 
Lord  V.  Dall,  288,  456. 
Lord  Brougham's  Act,  473. 
Lord  Campbell's  Act,  449. 
Lord  Denman's  Act,  472. 
Loring,  Charles  G.,  319,  408,  419. 


57S 


INDEX 


Louisiana,   first   law   reports,   366; 

Federal  bar  of,  412. 
Loiiisvilk  R.  R.  Co.  v.  Letson,  505. 
Lowell,  John,  309. 
Lowther,  G.,  107. 
Loyalists,  lawyers  who  became,  114 

note,  213. 
Ludlow,  Roger,  128. 
Luther  v.  Borden,  438. 
LjTnan,  Phineas,  131. 
LjTich,  Thomas,  Jr.,  122. 
Lynde,  Benjamin,  73,  75. 
Lynde,  Benjamin,  Jr.,  75. 
Lynde,  Samuel,  72. 
Lyons,  Peter,  47. 

M 

Magazines,  American,  461  note. 

Maine,  colonial  bar  and  courts,  139; 
first  law  reports,  408;  Federal 
bar  of,  413. 

Manby  v.  Scott,  19. 

Manigault,  Peter,  121. 

Manwood,  John,  Forest  Law,  33. 

Marbury  v.  Madison,  264-266. 

March,  John,  Slander,  34. 

Marchant,  Henry,  143. 

Marine  Insurance,  law  of,  454. 

Married  Women,  law  of,  470-471. 

Marsh,  Charles,  322. 

Marsh  v.  Billings,  462. 

Marshall,  John,  246;  appointment 
as  Chief  Justice,  252;  Pinkney's 
opinion  of,  252;  Adams'  opinion 
of,  252  note;  opinion  in  Marbury 
V.  Madison,  264-266;  at  Burr 
trial,  267-269;  opinion  of  Jeffer- 
son, 275  note;  opinion  of  Pinkney 
in  The  Nereide,  280;  opinion  in 
McCidloch  case,  380;  opinion  in 
Steamboat  case,  394-395;  view  on 
States'  rights,  400;  influence  on 
position  of  Supreme  Court,  402- 
405;  description  of,  by  George 
Bancroft,  416;  by  George  Tick- 
nor,  417;  death,  419;  J.  Q.  Adams* 
opinion  of,  420;  number  of  opin- 
ions, 421. 

Marshall  v.  B.  6*  0.  R.  R.,  506. 


Marten's  Law  of  Nations,  335. 

Martin,  Francis  X.,  opinion  as  to 
common  law,  226;  Reports,  330; 
Pothier  on  Contracts,  335;  Execu- 
tors, 336. 

Martin,  Luther,  258-259,  261,  267, 
268,  270,  279,  379. 

Martin's  Reports,  330. 

Martin  v.  Hunter's  Lessee,  371. 

Martineau,  Harriet,  description  of 
Supreme  Court,  and  Marshall  in 
1834,  416. 

Martyn,  Richard,  134. 

Maryland,  colonial  bar  in,  50-56; 
colonial  courts  in,  50;  rules  for 
admission  of  lawyers,  202;  bar  in 
early  Supreme  Court,  258-261; 
first  law  reports,  330;  Federal  bar 
of,  369,  410;  description  of  law- 
yers by  Story,  317. 

Maryland,  University  of,  law  pro- 
fessorship, 356. 

Maryland  v.  B.  &  O.  R.  R.,  485. 

Mason,  George,  47. 

Mason,  Jeremiah,  135,  243,  319. 

Mason,  John  Thompson,  246,  410. 

Massachusetts,  17th  century  bar  in, 
59;  1 8th  century  bar  in,  79-88; 
courts  in,  61,  72-74;  law  books  in, 
71;  rules  for  admission  of  law- 
yers, 196-200;  legislation  as  to 
attorneys  in  1 785-1 790,  218; 
barristers  and  counsellors  in  early 
State,  307-308;  early  State  bar, 
304-319;  first  law  reports,  331; 
Federal  bar  of,  368,  408;  railroad 
law  in,  485-490;  corporations  in, 
493-500;   codes  in,  528-530,  534, 

536-538. 
Masters,  Giles,  73. 
Mathews,  Stanley  P.,  440. 
Maule's  Case,  236. 
Maxwell,  Hugh,  304. 
May,  Henry,  410. 
Mayer,  Brantz,  458. 
McClaine,  Archibald,  125. 
McCuIloch,  Henry  E.,  123. 
McCulloch  V.  Maryland,  account  of, 

379-381- 


INDEX 


579 


McKean,  Thomas,  no. 

McKinley,  John,  443,  444,  501. 

McLean,  John,  401. 

McRae,  Alexander,  268. 

Mechem,  Floyd  R.,  Agency,  554. 

Mercenary  Attorneys  Acts,  in  Vir- 
ginia, 41-42. 

Meredith,  William  M.,  398,  411. 

Metcalf,  Theron,  law  school  of,  365; 
views  of  codes,  519,  530. 

Michigan,  first  law  reports,  408; 
Federal  bar  of,  412. 

Middlebury  College,  law  professor- 
ship, 356. 

Middleton,  Arthur,  122. 

Midnight  Judges,  252. 

Mills,  Elijah  H.,  318;  law  school  of, 

364- 
Mills,  Henry  E.,  Eminent  Domain, 

553- 
Minnesota,  first  law  reports,  408. 

Minot,  George  R.,  528. 

Mississippi,  first  law  reports,  366; 
Federal  bar  of,  411. 

Missouri,  first  law  reports,  366;  Fed- 
eral bar  of,  370,  411. 

Mitchell  V.  Reynolds,  146. 

Moland,  John,  108. 

Mompesson,  Robert,  76,  92,  104, 
112. 

Montesquieu's  Esprit  des  Lois,  335. 

Moore,  Alfred,  125,  251,  291. 

Moore,  A.  Maurice,  125. 

Moot,  The,  203. 

JMorawetz,  Victor,  Corporations,  553. 

More,  Nicholas,  104. 

Morecraft,  John,  52. 

Morehead,  James  T.,  410,  437. 

Morrell  v.  Trenton  Ins.  Co.,  456. 

Morris,  Gouverneur,  297. 

Morris,  Lewis,  92. 

Morris,  Phineas  P.,  440. 

!Morris,  Richard,  292. 

Morris,  Robert  H.,  112. 

Morton,  Marcus,  318. 

Morton,  Perez,  318. 

Morton,  Thomas,  67. 

Municipal  Corporations,  first  book 
on,  SSI- 


N 

Negligence,  early  American  law  of, 
289;  first  book  on,  550. 

Nelson,  John,  444. 

Nelson,  Samuel,  443. 

New  Hampshire,  colonial  bar  in, 
138-139;  courts  in,  134-138; 
rules  for  admission  of  lawyers,  200; 
early  state  bar,  319-321;  first  law 
reports,  330. 

New  Jersey,  colonial  bar  in,  11 2-1 14; 
courts  in,  111-112;  rules  for 
admission  of  lawyers,  201 ;  statute 
forbidding  English  citations,  232; 
first  law  reports,  330;  Federal  bar 
of,  369,  413. 

New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants Bank,  484. 

Newton,  Thomas,  79. 

New  York,  colonial  bar  in,  94-101; 
courts  in,  91-93;  rules  for  ad- 
mission of  lawyers,  201;  bar  of 
in  early  Supreme  Court,  262; 
early  state  bar,  292-304;  first 
law  reports,  294,  331;  Federal 
bar  of,  369,  409;  codes  in,  525, 
532, 535-536. 

New  York  v.  Miln,  422. 

Nicholas,  George,  as  law  professor, 

353- 

Nicholas,  Philip  N.,  369,  371. 

Nicholas,  Robert  C,  47. 

Nicoll,  Benjamin,  98. 

Norris  v.  Boston,  account  of,  438-439. 

North  Carolina,  colonial  bar  in,  123- 
125;  courts  in,  123;  first  law 
reports,  330;   Federal  bar  of,  370, 

413- 
North  Carolina  Law  Repository,  339. 
North,  Roger,  on  legal  education, 

151- 

Nova  Staluta,  32. 
Novae  Narrationes,  32. 
Noyes,  William  C,  409,  532. 


Oakley,  Thomas  J.,  369,  393. 

Oath  of  .\ttorncy,  in  England,  26; 


S8o 


INDEX 


in  Virginia,  43;  in  Maryland,  53; 
in  Massachusetts,  72,  77;  in  New 
Jersey,  113;  in  South  Carolina, 
121;  in  North  Carolina,  123;  in 
Georgia,  126;  in  Connecticut, 
130;  in  New  Hampshire,  139;  in 
Rhode  Island,  141. 

O 'Conor,  Charles,  409. 

Ogden,  Da\ad,  114. 

Ogden,  David,  B.,  303;  in  Sturgis 
case,  378;  383;  in  Ogden  v. 
Saunders,  398;  in  N.  Y.  v.  Miln, 
422;  in  Passenger  cases,  439;  502. 

Ogden  V.  Saunders,  account  of,  398- 
399. 

Ohio,  first  law  reports,  366;  Federal 
bar  of,  411;   revised  statutes  of, 

531- 
Old  Natura  Brevium,  32. 

Old  Tenures,  32. 

Oliver,  Benjamin  L.,  Practical  Con- 
veyancing, 334. 

Oliver,  Peter,  75. 

O'Reilly  v.  Morse,  459. 

Oregon,  first  law  reports,  408. 

Original  Package,  first  use  of,  398. 

Osborn  v.  Bank  of  the  United  States^ 
account  of,  396. 

Otis,  Harrison  Gray,  314- 

Otis,  James,  St.,  82;  legal  educa- 
tion of,  160. 

Otis,  James,  Jr.,  82. 

Overton,  John,   370. 

Overton's  Reports,  330. 


Paca,  William,  56. 

Paine,  Elijah,  322,  461. 

Paine,  Robert  Treat,  82. 

Palmer,  John,  95. 

Park,  James  A.,  Marine  Insurance, 

ISO- 
Parker,  Isaac,  as  law  professor,  362. 

Parker,  Joel,  448. 

Parker,  William,  134,  138. 

Parsons,  Samuel  H.,  134. 

Parsons,  Theophilus,  his  law  ofiice, 

169;    course  of  law  study,   181; 


decision    on   law   of    libel,    238; 
sketch  of,   311-314;    Ws  library, 

338. 
Parsons,  Theophilus,  Jr.,  409,  462; 
Contracts;  Mercantile  Law;  Marv- 
titne  Law,  546;    Notes  and  Bills, 

548. 

Parsons'  Case,  47. 

Pasley  v.  Freeman,  147. 

Patent  Law,  early,  289-290;  from 
1815  to  i860,  457-460. 

Pelham,  Henry,  59. 

Pendleton,  Edmund,  46. 

Perm,  John,  125. 

Penn,  William,  trial  of,  20;  views 
on  common  law,  101-103. 

Penn  v.  Lord  Baltimore,  147. 

Pennington's  Reports,  330. 

Pennsylvania,  colonial  bar  in,  107- 
iio;  courts  in,  103-107;  rules 
for  admission  of  la^vyers,  202; 
prejudices  and  legislation  against 
lawyers,  221;  against  common 
law,  232-233;  bar  before  early 
Supreme  Court,  245,  256-258;  first 
law  reports,  330;   Federal  bar  of, 

369,411- 
Pennsylvania  v.  Wheeling  etc.  Bridge 

Co.,  439- 
People  V.  Croswell,  238. 
People  V.  Fisher,  470. 
People  V.  Freeman,  471. 
Perkins,   John,   Conveyancing,  33. 
Perry,  Jairus  W.,  Trusts,  551. 
Peters,  Richard,  246. 
Petigru,  James  L.,  412. 
Phaer,  Thomas,  Precedents,  32. 
Phil.  &•  Reading  R.  R.  v.  Derby, 

440,  485. 
Phil.  6*  Trenton  R.  R.  v.  Simpson, 

429. 
Phillips,  John,  315. 
Phillips,  Willard,  409,  S3i;  Patents, 

546. 
Phillips,  William,  Legalis  Ratio,  31. 
Phillips  V.  Savage,  132  note. 
Pickering,  John,  138,  139. 
Pierce,  Edward  L.,  Railways,  546. 
Pike,  Albert,  412. 


INDEX 


581 


Pinckney,  Charles  C,  122. 

Pinckney,  Thomas,  122. 

Pinkney,  William,  opinion  of  Mar- 
shall, 252;  description  of,  259-260; 
argues  The  Nercide,  280-284;  head 
of  bar,  367,  369;  in  College  case, 
375;  in  McCulloch  case,  379-380; 
in  pirate  cases,  382;  in  Cohens 
case,  383;  death,  393. 

Pirate  cases,  382-383. 

Plaisted,  John,  134. 

Piatt,  Jonas,  301. 

Plumer,  William,  136;  legal  educa- 
tion of,  184,  320. 

Plymouth  Bay  Colony,  lawyers  and 
courts  in,  59-60. 

Police  Power,  first  use  of  phrase,  398. 

Polk,  James  K.,  370. 

Pomeroy,  John  N.,  Conslitutional 
Law,  549;    Equity  Jurisprudence, 

554- 
Porter,  Alexander  J.,  412. 
Powell,  John  J.,  Contracts,  150. 
Pratt,  Benjamin,  82,  92,  93,  204. 
Prentice,  E.   P.,  Commerce  Clause, 

555- 

Prentice,  John,  139. 

Prentiss,  Sergeant  S.,  411. 

Prescott,  William,  314,  528. 

Princeton  College,  law  professor- 
ship, 355. 

Prince  Librar>',  law  books  in,  162. 

Pringle,  John  J.,  122,  246. 

Property  Qualifications  for  voting, 
influence  on  the  law,  446-447. 

Prouty  V.  Ruggles,  458. 

Pugh,  George  £.,411. 

Pulton,  Ferdinando,  Penal  Statutes, 

3S- 


Quincy,  Josiah,  Jr.,  83. 


Radcliff,  Jacob,  524. 

Railroads,  history  of,  475-479;  de- 
velopment of  law  of,  480-492; 
first  law  books  on,  490-491. 


Randolph,  Edmund,  246,  247,  261, 

268. 
Randolph,  John,  46. 
Randolph,  John,  267,  268. 
Randolph,  Sir  John,  46. 
Randolph,  Peyton,  46. 
Rantoul,  Robert,  Jr.,  469,  530. 
Rastcll,  John,  Laws  of  England,  32. 
Rastell,  William,  Register,  32. 
Rawle,  William,  245,  256,  257,  279, 

528;   Constitution,  541. 
Ray,  Charles  A.,  Strikes,  555. 
Read,   Colinson,  American  Pleaders, 

333- 
Read,  George,  no. 
Read,    Joseph,    80;     admission    to 

Lincoln  Inn,  189. 
Receivers,  first  book  on,  552. 
Rcdfield,  Amasa  A.,  Negligenee,  550. 
Redficld,  Isaac  N.,  Railways,  547, 

549- 
Reed,  James,  246. 
Reeves,  John,  History,  150;    course 

of  reading  for  legal  study,  155. 
Reeve,   Tapping,   358;     Baron   and 

Femme,   337;     as   law   professor, 

357- 
Reno,  Conrad,  Employers'  Liability, 

555- 

Reports,  see  Law  Reports. 

Rcturna  Brcviiim,  32. 

Rex  V.  Wood/all,  147. 

Rhode  Island,  colonial  bar  in,  141- 
143;  courts  in,  140-141;  rules 
for  admission  of  lawj'ers,  201; 
Federal  bar  of,  368,  411. 

Rhode  Islatid  v.  Massachusetts,  429. 

Richards,  David,  Jr.,  142. 

Richardson,  John,  72. 

Richardson,  William  M.,  447. 

Ridgely,  Robert,  54. 

Robbins,  Ashur,  246,  368. 

Robinson,  Mathew,  142. 

Rodney,  Caesar  A.,  267. 

Roccus,  335. 

Rogers,  John  G.,  531. 

RoUe,  Hcnr>-,  Abridgment,  34;  ad- 
vice as  to  study  of  law,  30. 

Root,  Erastus,  524. 


S82 


INDEX 


Root,  Jesse,  129,  134. 
Root's  Reports,  330. 
Rose  V.  Himely,  279. 
Rudyard,  Thomas,  95. 
Ruggles,  Timothy,  82. 
Russell,  Chambers,  75. 
Rutherforth,  Thomas,  Institutes,  150. 
Rutledge,  Edward,  122,  189. 
Rutledge,  Hugh,  122. 
Rutledge,  John,   121;    letter  as  to 
imis  of  court  education,  189. 


Saltonstall,  Nathaniel,  74. 
Sampson  against  the  Philistines,  221. 
Scaccario,  32. 
Schouler,  James,  Personal  Property, 

552. 
Scott,  John  M.,  97. 
Scott,  William  L.,  Telegraphs,  549- 
Scott  V.  Sandford,  441. 
Scott    V.  Shepard,  147. 
Scripture  v.  Lowell  Mut.  Fire  Ins. 

Co.,  ASS- 

Seaman,  Ezra  C,  412. 

Sebastian,  William  K.,  412. 

Sedgwick,  Henry,  view  as  to  codes, 
522. 

Sedgwick,  Theodore,  83. 

Sedgwick,  Theodore,  Jr.,  Dam- 
ages, 546. 

Sclden,  H.  R.,  459. 

Semayne's  Case,  19. 

Sergeant,  John,  369,  396,  411,  414, 
433.  461,  502. 

Sergeant,  Peter,  74. 

Sergeant,  Thomas,  Foreign  Attach- 
ment, 337;  Constitutional  Law,  541. 

Serjeants,  in  England,  23;  in  New 
Jersey,  113. 

Sewall,  David,  139. 

Sewall,  Jonathan,  82. 

Sewall,  Samuel,  74,  75. 

Sewall,  Stephen,  75. 

Seward,  Wilham  H.,  409,  437,  440> 

458,  472. 
Sey?nour  v.  McCormick,  454,  459. 
Shaw,    Lemuel,    318;     moulder    of 


common  law,  448,  452;   influence 
on   railroad  law,  455;   456,   462, 

469,  470,  471,  480-483,  529- 
Shearman,  Thomas  G.,  Negligence, 

SSo- 
Sheldon,    Henry    N.,    Subrogation, 

554- 
Shelley's  Case,  19. 
Sheppard,   William,   Common   Law, 

34;   Touchstone,  34;   Corporations, 

34. 
Sherman,  Roger,  133. 
Sherman,  Roger  Minott,  323. 
Shields,  James,  410. 
Shippen,  Edward,  no,  232. 
Shirley,  William,  82. 
Simms,  Charles,  261,  409. 
Slave's  Case,  19. 
Slavery,   cases   involving,   396-397; 

law  books  on,  547. 
Smith,  Jeremiah,  319. 
Smith,  OUver  H.,  412. 
Smith,  Richard  Morris,  297. 
Smith,  Robert,  123. 
Smith,  William,  92. 
Smith,  William,  95;   course  of  legal 

study  advised  by,  170. 
Smith,  William,  Jr.,  97,  524. 
Smith  V.  Swormstadt,  441. 
Sttiilh  V.  Tiirner,  account  of,  438-439. 
Smythe,  Alexander,  383. 
Snowden  v.  Noah,  462. 
Sodality,  The,  203. 
Soule,  Pierre,  412. 

South  Carolina,  colonial  bar  in,  120- 
122;  courts  in,  119-120;  rules 
for  admission  of  lawyers,  202; 
first  law  reports,  330;  Federal  bar 
of,  370,  412. 
Southard,  Samuel  L.,  413,  422. 
Spelman,      Henry,     Glossary,     33; 

views  on  law,  6. 
Spencer,  Ambrose,  291,  301,  414- 
Spencer,  John  C,  304,  409>  524- 
Spencer's  Case,  19. 
Sprague,  Peleg,  319. 
St.    Germain,    Christopher,    Doctor 

and  Student,  32. 
Stanberry,  Henry,  411,  441. 


IKDEX 


583 


Stanton,  Edwin  M.,  411,  439,  444, 

459- 
Staples,  Scth  R.,  law  school  of,  364. 

State  Trials,  in  England,  20-21,  147. 

States'   Rights,   371,   381,   384-391, 

400,  413.  414.  418,  438-439- 
Statham,  Nicholas,  Abridgment,  32. 
Statutes,    publication    of     colonial, 

161;    codification  of,  see  Codes. 

See  Unconstitutional  Statutes. 
Staunford,  William,  Pleas,  i^^- 
Steams,  Asahel,  as  law  professor,  362, 

528,  529;   Real  Actions,  542. 
Stetson  V.  Mass.  Mutual  Ins.  Co.,  288. 
Stevens,  Thaddeus,  458,  459. 
Stevens  v.  Gladding,  461. 
Stiles,  Ezra,  on  common  law,  14;  as 

to  library  of  M.   Griswold,   163; 

describes  U.  S.  Circuit  Court,  244; 

plans  law  professorship,  341-342, 

and  Appendix   I;    his  views  on 

William  and  ^Mary  Professorship, 

346;   as  to  Jefferson,  346  note. 
Stiles,  Ezra,  Jr.,  legal  education  of, 

181. 
Stlmpson    V.  Baltimore    etc.  R.  R., 

458. 
Stimson,  Frederic  C,  Statute  Law, 

554- 

Stockton,  Richard,  114,  261. 

Stone,  Thomas,  56. 

Storer,  Bellamy,  411. 

Story,  Joseph,  views  on  Coke,  175; 
appoints  barristers  in  Circuit 
Court,  243;  description  of  early 
Supreme  Court  bar,  257-258;  de- 
scribes Luther  Martin,  259;  ar- 
gues Fletcher  v.  Peck,  271,  317; 
Jefferson's  opinion  of,  273;  ap- 
pointment on  Supreme  Court, 
274;  founder  of  admiralty  law, 
279,  280;  sketch  of,  315-318;  his 
Pleadings,  333;  opinion  in  Mar- 
tin v.  Hunter,  371;  on  attacks  on 
Supreme  Court,  387;  letter  as  to 
Steamboat  case,  393;  opinion  of 
Taney  as  a  young  lawyer,  397  ; 
views  of  Cherokee  case,  415;  his 
Constitution,    418;    international 


law  opinions,  420;  views  on 
Charles  River  Bridge  case,  424- 
427;  description  of  J.Q.Adams, 
430;  decision  in  Prigg  case,  431; 
describes  Vidal  case,  434;  resigna- 
tion and  views,  435-436;  marine 
insurance  law,  454,  457;  copyright 
law,  461;  views  of  codes,  523,  528, 
530;  Bailments,  544;  Constitu- 
tional Law,  545;  Conflict  of  Laws, 
5;  Equity  Pleading,  Equity  Juris- 
prudence, Agency,  Partnership, 
Bills  of  Exchange,  545. 

Stoughton,  William,  72,  74,  75. 

Street  Railways,  law  of,  452-453. 

Strong,  Caleb,  83,  31S. 

Stuart  V.  Laird,  267. 

Sturgis  V.  Crowninshield,  account  of, 

377-379- 

Suffolk  County  Bar,  early  records  of, 
83-85,  88, 196-200. 

Sullivan,  Francis  S.,  Lectures,  156. 

Sullivan,  George,  320,  368. 

Sullivan,  James,  139;  law  books  sold 
to,  164;  condition  of  Bar  in 
his  practise,  204-205;  Jefferson's 
opinion  of,  273;  sketch  of,  309; 
Land  Titles,  325,  334. 

Sullivan,  John,  139. 

Sullivan,  William,  315,  470. 

Sumner,  Charles,  412;  describes 
Federal  Bar  in  1834,  418;  462. 

Supreme  Court  of  United  States, 
first,  242;  changes  in  early  years, 
251;  additional  judges,  254;  power 
to  decide  statutes  unconstitu- 
tional, 264-266;  picture  of,  in 
1815,  281;  first  reporter,  331-332; 
legislative  attacks  on,  385-388, 
413;  changes  in  judges,  401;  terms 
of,  402;  status  of  court  under  Mar- 
shall, 403-406;  sale  of  reports  of, 
405;  Federal  bar  of,  366-371, 
408-412;  description  of,  in  1834, 
by  H.  Martineau.  416;  practise  in 
constitutional  cases,  423;  change 
in  policy,  427-428;  additional 
judges,  443-444;  change  in  per- 
sonnel,   1S30-1S60,    443;     patent 


5S4 


INDEX 


law  cases  in,  458-460;  corpora- 
tion cases  in,  501-506. 

Sutlon  Hospital  Case,  19. 

Swann,  Thomas,  261,  368,  410. 

Swayne,  Noah  H.,  411. 

Smft,  Zephaniah,  323;  System  of 
Laws,  336;   Evidence,  337. 

Swift  V.  Tyson,  409,  432. 

Swinburne,  Henry,  Wills,  33. 


Talcott,  Samuel  A.,  304. 

Taney,  Roger  B.,  369;  legal  educa- 
tion of,  183;  opinion  of  Pinkney, 
260;  first  case  in  Supreme  Court, 
397;  in  Etting  case,  397;  in  Brown 
V.  Maryland,  398;  as  Chief  Jus- 
tice, 418,  421;  Curtis'  opinion  of, 
422;  decision  in  Charles  River 
Bridge  case,  425-426;  decision  in 
Luther  v.  Borden,  438;  decision  in 
Genesee  Chief,  440;  Attorney- 
General,  444;  opinion  in  Bank  of 
Augusta  case,  504. 

Taylor,  Creed,  law  school  of,  364. 

Taylor,  John,  Constitution,  542. 

Taylor  v.  Carpenter,  462. 

Taylor's  Reports,  330. 

Tazewell,  L.  W.,  274,  368,  369,  399. 

Telegraph,  law  of,  450-452. 

Tennessee,  first  law  reports,  366; 
Federal  bar  of,  370. 

Texas,  first  law  reports,  408. 

Thacher,  Oxenbridge,  82. 

Thayer,  James  B.,  Evidence,  555. 

The  Antelope,  396. 

The  Marianna  Flora,  397. 

The  Nereide,  262,  280. 

Theloal,  Simon,  Writs,  ^:i. 

Thomas,  Nathaniel,  73. 

Thompson,  Richard  W.,  412. 

Thompson,  Seymour  D.,  Stock- 
holders, Directors,  553;  Electricity, 
554;   Corporations,  555. 

Thompson,  Smith,  291,  401,  443. 

Thomson,  Stevens,  46. 

Thomson  v.  Winchester,  462. 

Thornton,  Matthew,  135. 


Thorogood's  Case,  19. 

Thoroughgood,  Cyprian,  51. 

Thurlow  V.  Massachusetts,  436. 

Ticknor,  George,  description  of 
Supreme  Court  in  1815  by,  281; 
description  of  Marshall,  417; 
views  as  to  codes,  522;  views  of 
slavery,  431  note. 

Tidd,  William,  Practice,  150. 

Tilghman,  Edward,  245,  248,  250, 
256,  257,  279. 

Tilghman,  William,  246. 

Todd,  Thomas,  401. 

Tompkins,  Daniel  D.,  301. 

Torts,  early  law  of,  289;  law  of, 
449-450. 

Toulmin,  H.,  Criminal  Law,  336. 

Tracy,  Uriah,  323. 

Trademarks,  law  of,  462. 

Transylvania  University,  law  pro- 
fessorship, 353. 

Trevett  v.  Weeden,  143,  218. 

Trimble,  Robert,  401. 

Troup,  Robert,  296. 

Trowbridge,  Edmund,  75,  81;  li- 
brary of,  162. 

Trumbull,  John,  129. 

Trumbull,  Lyman,  410. 

Tucker,  St.  George,  account  of  Vir- 
ginia bar,  48;  his  Blackstone,  336; 
as  law  professor,  346,  371. 

Tudor,  John,  95. 

Twyne's  Case,  19. 

Tyler,  John,  47;  opinion  of  common 
law,  225-226;  opinion  on  Batture 
case,  274. 

Tyler,  Royall,  322. 

Tyler's  Reports,  330. 

Tyson,  Job  R.,  412,  440. 


U 

Ultra  Vires,  506. 

Unconstitutional     Statutes,     power 

of  Supreme  Coiurt  to  decide,  265- 

266  note;  385-387. 
United  States  Law  Journal,  547. 
U.  S.  v.  Amistad,  429-430. 
U.  S.  V.  Brigantine  William,  277. 


INDEX 


585 


U.  S.  V.  KUntock,  383. 
Updike,  Daniel,  142,  143. 


Van  Buren,  John,  439. 

Van  Buren,  Martin,  304;  as  to  pos- 
sible appointment  as  judge  of 
Supreme  Court,  390. 

Van  Cortlandt,  Stephen,  92. 

Vanfleet,  John  M.,  Collateral  Attack, 

S55- 

Van  Ness,  William  W.,  301. 

Van  Ness,  William  P.,  524. 

Van  Schaack,  Peter,  97. 

Vanstophorst  v.  Maryland,  247. 

Van  Vechten,  Abraham,  297. 

Varick,  Richard,  297,  524. 

Vamum,  James  M.,  143. 

Vattel,  335. 

Vanx  V.  Newman,  19. 

Vermont,  rules  for  admission  of 
lawyers,  202;  early  State  bar, 
321-322;    first  law  reports,   330. 

Verplanck,    Gulian    C,    Contracts, 

542. 
Vetera  Statuta,  33. 
Vidal  V.  Philadelphia,    account    of, 

433-435- 

Viner,  Charles,  Digest,  150. 

Virginia,  colonial  bar  in,  41,  45-49; 
colonial  courts  in  40,  44;  rules 
for  admission  of  lawyers,  202 ;  reso- 
lutions as  to  common  law  in 
Federal  courts,  231;  bar  before 
early  Supreme  Court,  246,  261; 
Judge  Tyler's  opinion  of,  274; 
first  law  reports,  330;  Federal  bar 
of,  369. 

Virginia,  University  of,  law  profes- 
sorship, 364. 

Vose  V.  Eagle  Life  etc.  Ins.  Co.,  456. 

W 

Walcott,  Samuel  B.,  531. 
Walker,  Lcroy  P.,  412. 
Walker,  Robert  J.,  411,  429. 
Walker,  Timothy,  American  Law, 
546. 


Walton,  George,  126. 

Walton,  John,  142. 

War  of   1812,   effect  on  American 
law,  275-286. 

Ward,  Artemas,  315. 

Ward,  Nathaniel,  64. 

Ward,  Thomas,  142. 

Warden,  John,  261. 

Ware  v.  Ilylton,  247. 

Waring  v.  Clarke,  437. 

Washburn,   Emory,   Real  Property, 
Easements,  548. 

Washington,  Bushrod,  251,  291,  401. 

Washington,  City  of,  in  early  days, 
254-256. 

Washington's  Reports,  330. 

Watson,  John,  73. 

Watson,  P.  H.,  459- 

Wayne,  James  M.,  443. 

Weare,  Meschech,  134;    library  of, 
163. 

Webster,   Daniel,   views   on    Coke, 
176;   legal  education  of,  185-187; 
head  of  bar,  367-368;    in  College 
case,  372-377;  in  McCulloch  case, 
379;    in  Steamboat  case,  393-3955 
in  Bank  case,  396;    in  Ogden  v. 
Saunders,  398;  letters  as  to  Dan- 
dridge  case,  399-400;   in  Cherokee 
case,  414,  419;    in  Charles  River 
Bridge  case,  423-426,  429;  argues 
Vidal    case,    433-435,    43^,    437, 
438;    account  of  Passenger  cases, 
438-439;    account  of  changes  in 
Supreme  Court,  443;   in  Goodyear 
case,  458;    in  Wheaton  case,  461; 
view  of  codes,  519;   death,  413. 
Webster,  Noah,  133,  323. 
Wells,  John,  303. 
Wcntworth,  John,  135. 
West,  William,  Symboleography,  33. 
West,  Benjamin,  139. 
Western  Law  Journal,  547- 
Western  Tel.  Co.  v.  Magnetic  Td  Co., 

451- 
Wharton,  Francis,  Conflict  of  Law, 

551- 
\\Tiarton,  Thomas  J..  528. 
Wheaton,    Henry,    304,    368,    398; 


5S6 


INDEX 


Maritime     Captures,     335;     524; 
International  Law,  546. 

Wheaton  v.  Peters,  419,  461. 

WTieelcr,  Jacob  D.,   Slavery,   547- 

White,  Albert  S.,  412. 

White,  Alexander,  412. 

White,  Edward  D.,  412. 

WTiitman,  Benjamin,  318. 

Wickham,  John,  248,  261,  268,  274. 

Wickliffe,  Charles  A.,  262,  410. 

Wigmorc,   John   H.,   Evidence,  556. 

William  and  Mary  College,  law 
professorship,  343-345- 

Williams,  Elisha,  304. 

Williams,  Ephraim,  331. 

Williams,  Thomas  S.,  323,  448. 

Wilson,  James,  his  law  students,  167; 
242,  251;  his  lectures,  336;  as 
law  professor,  346-349. 

Wilson  V.  Rousseau,  458. 

Winder,  William  H.,  261,  369. 

W' ingate,  Edmund,  Common  Law,  34. 

Winthrop,  John,  59,  63. 

Winthrop,  John,  Jr.,  128. 

Winthrop,  Wait,  74,  75. 

Winthrop  v.  Lechmere,  131. 

W^irt,  William,  261;  opinion  of  Mar- 
shall's argument,  248;  opinion  of 
Pinkney,  260;  at  Burr  trial,  268; 
in  Batture  case,  274;  attorney- 
general,  366-367,  371;  in  College 
case,  372-375;  in  McCulloch  case, 
379;  letter  as  to  Kent,  389;  argues 
Steamboat  case,  393-394;  in  Ante- 
lope case,  396;  in  Brown  v.  Mary- 
lajid,  398;  in  Ogden  v.  Saiinders, 
398;  in  Dandridge  case,  399;  in 
Cherokee  case,  414;  in  Charles 
River  Bridge  case,  423;  death,  410. 
Wisconsm,  first  law  reports,  408. 


Wolcott,  Oliver,  323. 
Wolcott,  Roger,  129. 
Women,  as  lawyers,  in  England,  26; 

in  Maryland,  52. 
Wood,  George,  369,  409. 
Wood,  Thomas,  Institutes,  150. 
Woodbridge,  William,  412. 
Woodbury,  Levi,  443. 
Wooddeson,  Richard,  Jurisprudence, 

150. 
Woodworth,  John,  301,  524. 
Worcester    v.    Georgia,  accoimt    of, 

415- 
Worrall,  John,  Bibliotheca,  155. 

Worthington,  John,  82. 

Wragg,  William,  121. 

Wright,  John  C,  396. 

Wright  V.  Maiden  etc.  Ry.,  453- 

Wyche,  William,  Fines,  334;  5m- 
prefm  Court  Practise,  336. 

Wyer,  David,  139. 

Wyman,  Bruce,  Railroad  Rate  Regu- 
lation, 556. 

Wythe,  George,  47;  as  first  law 
professor,  343-345- 

Wythe's  Reports,  330. 


Yale,  Gregory,  Mining,  548. 

Yale  College,  law  professorship,  354. 

Yale  Law  School,  354. 

Yates,  Joseph  C,  301. 

Yates,  Robert,  98,  292. 

Yazoo  Frauds,  270  note. 

Year  Books,  34. 

Yeates,  Jasper,  246.  ' 


Zenger's  Case,  236. 


AA    000  694  614    9 


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Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


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